Scope.
These Terms and Conditions of Service (“Terms”) govern the use of the Service (as defined below) from FNW, LLC dba Virtual Systems (“Virtual Systems” and together with the customer, the “Parties”), a Michigan Limited Liability Company, of 2450 44th Street, Suite 303B, Grand Rapids, MI, 49512, for all Virtual System customers, their employees, affiliates, officers, directors, shareholders, members, agents or representatives, and end user customers (collectively, the “Customer”). “Service(s)” shall mean the Backup Service, VDI, VDS, VPS, and all other services provided by Virtual Systems to the Customer.
Term
The initial term begins on the first day that Services become available to the Customer (“Initial Term”) and will continue for the duration specified in the agreement with the Customer (“Customer Agreement”). Upon expiration of the Initial Term, unless otherwise specified in the Customer Agreement, the Customer Agreement shall automatically renew for successive twelve (12)-month periods (collectively, the “Renewal Term”) at the then current pricing, unless different pricing is established by mutual written agreement of the Parties or terminated by either party with thirty (30) days’ prior written notice.
Veeam Powered Backup Service.
Veeam Powered Backup Service (“Backup Service”) is an Infrastructure as a Service (“IaaS”) offering. Veeam Powered Backup Service is constructed using Dedicated Storage Resources. Service resources are allocated and controlled by a Virtual Systems and made available to the Customer.
Responsibilities of Customer.
The Customer is solely responsible for:
(a) Determining and configuring RTO/RPO objectives and data retention periods;
(b) Configuring jobs and sending backup data from client’s production environment;
(c) Obtaining, maintaining and reporting usage for all user licenses installed on the BaaS / DRaaS offering;
(d) Backing up and ensuring integrity of your data;
(e) The proper configuration and use of our Services, as well as for taking the necessary steps to secure, protect, and back up your accounts, data and digital content (“Content”) using appropriate means of security, including encryption to keep Content from unauthorized access; and
(f) Customer Content. By uploading or otherwise transmitting Content, the Customer agrees that it will not violate the Terms or any applicable law.
Virtual Desktop Infrastructure
Virtual Desktop Infrastructure (“VDI”) is an Infrastructure as a Service (“IaaS”) offering. VDI provides Dedicated Resources. Virtual Desktop Services are constructed using dedicated virtual CPU (“vCPU”), memory and storage resources. These resources are allocated and controlled by a Virtual Systems managed hypervisor.
Responsibilities of Customer.
The Customer is solely responsible for:
(a) Allowing Virtual Systems access for license reporting
(b) Backing up and ensuring integrity of customer’s data
(c) The proper configuration and use of our Services, as well as for taking the necessary steps to secure, protect, and back up your accounts and Content using appropriate means of security, including encryption to keep Content from unauthorized access; routinely archiving Content is also strongly encouraged.
(d) Customer Content. By uploading or otherwise transmitting Content, the Customer agrees that it will not violate the Terms or any applicable law.
Virtual Desktop Cloud Workspace
Virtual Desktop Services (“VDS”) are constructed using dedicated vCPU, memory and storage resources. These resources are allocated and controlled by a Virtual Systems managed hypervisor.
Responsibilities of Customer.
The Customer is solely responsible for:
(a) Allowing Virtual Systems access for license reporting
(b) Backing up and ensuring integrity of customer’s data
(c) Remain compliant with QuickBooks hosting requirements i.e. Product Version is a current version from the last 3 Releases;
(d) The proper configuration and use of the Services, as well as for taking the necessary steps to secure, protect, and back up your accounts and Content using appropriate means of security, including encryption to keep Content from unauthorized access; routinely archiving Content is also strongly encouraged.
(e) Customer Content. By uploading or otherwise transmitting Content, the Customer agrees that it will not violate the Terms or any applicable law.
Virtual Private Server.
Virtual Private Server (“VPS”) is an Infrastructure as a Service (“IaaS”) offering. Virtual Private Server provides Dedicated Resources. Virtual Private Server Services are constructed using dedicated vCPU, memory and storage resources. These resources are allocated and controlled by a Virtual Systems managed hypervisor.
Responsibilities of Customer.
The Customer is solely responsible for:
(a) Backing up and ensuring integrity of customer’s data
(b) The proper configuration and use of our Services, as well as for taking the necessary steps to secure, protect, and back up the Content using appropriate means of security, including encryption to keep Content from unauthorized access; routinely archiving Content is also strongly encouraged.
(c) Customer Content. By uploading or otherwise transmitting Content, the Customer agrees that it will not violate the Terms or any applicable law.
Bandwidth
Bandwidth Usage.
Bandwidth connectivity and use may be included in the Services at no additional cost. Virtual Systems reserves the right to throttle bandwidth at peak usage times if bandwidth is consumed “in excess”. Bandwidth consumed “in excess” will be defined as any bandwidth consumption that exceeds 2% of your total MRC for your given solution at current bandwidth market rates. Virtual Systems will not throttle bandwidth unless the Virtual Systems team determines throttling bandwidth is in the best interest of all customers at a particular time.
Purchased dedicated bandwidth is not subject to throttling.
HIPAA and HITECH Act Responsibilities of Customer.
Customer is solely responsible for determining if any Services and any applications, data or third party service that customer or its End User runs in the Virtual Systems environment must comply with any law, standards and policies, including without limitation, Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) (collectively referred to herein as the “Legal Requirement”) and ensuring that the Service, application data or third party service does comply with the applicable Legal Requirement. Customer acknowledges and agrees that Virtual Systems has no way of analyzing Customer’s data, services or applications deployed in the cloud service environment. Customer shall immediately notify Virtual Systems if any of the data in the Virtual Systems’ environment includes Protected Health Information (“PHI”), as that term is defined in HIPAA regulation. If the data does include PHI, Customer and Virtual Systems shall enter into a Business Associate Agreement (“BAA”).
Rates
Monthly Recurring Charges (“MRC”) shall be invoiced to the Customer monthly, unless otherwise mutually agreed in the Customers Agreement. A pro-rated portion for the first month’s service will be included on the first invoice plus the next month’s service in advance. Nonrecurring Charges (“NRC”) will be included on the invoice for applicable installation or service changes as directed by Customer. Monthly recurring rates will remain the same for the duration of the Initial Term. Changes or cancellations to ordered services after Virtual Systems’ due date communication to Customer will result in additional non-recurring charges. All amounts owed by Customer are due twenty-five (25) days from the invoice date (“Due Date”).
Disputes and Late Payments
To the extent Customer disputes a portion of an invoice, Customer may withhold payment on the disputed items, provide that Customer:
1. provides a written statement of the disputed charges to Virtual Systems in reasonable detail
within thirty (30) days of the invoice date (“Review Date”);
2. pays the undisputed portion of the invoice; and
3. negotiates in good faith with Virtual Systems for the purpose of resolving such dispute in a timely manner.
Virtual Systems shall not be obligated to consider any Customer notice of any billing discrepancies which are received by Virtual Systems after the Review Date. If payment has not been received within thirty (30) days from the invoice date, Virtual Systems will notify Customer that if payment is not received within five (5) days, then Virtual Systems shall have the right to terminate the Customer Agreement for cause and the Services will be disconnected immediately, or at the time and date otherwise provided by Virtual Systems, in its sole discretion. A late charge will be applied to Customer’s invoice for all outstanding undisputed amounts owed beyond the Due Date. Late charge will equal the lesser of one and a half percent (1.5%) of the outstanding charges or the maximum amount allowed by law. In the event a payment is received by Virtual Systems and is returned by insufficient funds or bank charges, Customer will reimburse Virtual Systems for all associated processing charges as well as an applicable late charge immediately upon demand.
In the event that undisputed payments are received late or returned by insufficient funds more than three (3) times during any twelve (12) month period, Virtual Systems may require Customer to establish a deposit or pay with guaranteed funds, in Virtual Systems’ sole discretion. Delivery of the Services is subject to the continuing approval of Customer’s creditworthiness, in Virtual Systems’ sole discretion. If necessary, Virtual Systems may require a cash deposit, the terms of which will be subject to mutual written agreement.
Early Termination.
If the Customer Agreement or Service is terminated by either party prior to the expiration of the Initial Term then Customer agrees to pay Virtual Systems an early termination charge equal to:
1. one hundred percent (100%) of all recurring charges committed to through the remainder of the Initial Term or Renewal Term, as applicable, for all unexpired months of service;
2. any non-recurring fees Virtual Systems experiences from other suppliers in accordance with canceling the Service; and
3. any outstanding invoices still owed. Such payment shall be made no later than thirty (30) days after the termination date.
Termination by Virtual Systems.
1. Virtual Systems shall have the right to terminate the Service or Customer Agreement for cause immediately and without notice if: (a) Customer attempts a denial of service attack against the Virtual Systems’ Managed Data Center; (b) Customer seeks to hack or break any security protocols within the Virtual Systems Managed Data Center; (c) Customer uses the Service in any way that disrupts or threatens service to other Virtual Systems’ customers; (d) Customer use of the Virtual Systems’ Managed Data Center poses a security risk that may subject Virtual Systems or any third party to liability, damages or danger; (e) Virtual Systems determines, in its sole discretion, that fraud is associated with the Customer’s use of the Virtual Systems’ Managed Data Center Service; or (f) Virtual Systems determines or is notified that Customer has been using Service for any illegal purpose or in a way that violates the law or infringes, violates, or misappropriates the rights of any third party; and (g) Virtual Systems determines or is notified that the Customer has been engaging in any malicious activity.
2. Virtual Systems shall have the right to terminate the Customer Agreement for cause upon written notice if Customer breaches any term of the Customer Agreement or the Terms and fails to cure the breach within thirty (30) days after receipt of written notice from Virtual Systems.
3. Virtual Systems shall have the right to terminate the Customer Agreement upon thirty (30) days written notice if Virtual Systems determines that provision of the Service has become impractical or unfeasible for any legal or regulatory reason, in Virtual Systems’ sole discretion.
Access to Data.
If the Customer Agreement is terminated by Virtual Systems for cause then Customer may not have access to Customer’s stored data and Virtual Systems may, in its sole discretion, destroy any of Customer’s stored data. If the Service or Customer Agreement is terminated by Customer or by Virtual Systems for a reason other than for cause, pursuant to the Terms, Customer may access its stored data any time prior to the date of termination. Virtual Systems may destroy any of Customer’s stored data that remains after the date of termination, in Virtual Systems sole discretion.
Unauthorized Access to Customer’s Data or Use of Services.
Virtual Systems is not responsible to the Customer for unauthorized access to the Customer’s data or unauthorized use of the Service. The Customer is responsible for the use of the Service by any of its employees, affiliates, officers, directors, shareholders, agents or representatives, or any other person given access to the Service; and any person who gains access to the Customer’s data or Service as a result of the Customer’s failure to use reasonable security precautions, even if such use was not authorized by the Customer.
Service Upgrade.
No early termination fee shall be due and owing if Customer and Virtual Systems execute a services agreement for a Service of higher capacity and the services agreement is of equal or longer term to the Initial Term or Renewal Term, if applicable.
Technical Standards of Performance.
Customer acknowledges that Virtual Systems will need to perform routine maintenance to the Service. Virtual Systems agrees to use reasonable efforts to provide prior notice of any scheduled maintenance with the exception of emergency maintenance. Such maintenance is acknowledged to not be considered for overall measurement of standards of performance and meeting Service metrics.
Customer shall be responsible for confirming that all Service is functioning properly upon completion of any maintenance work by Virtual Systems. Customer shall confirm the proper functioning of the Service by running tests and/or checks (“Tests”) to verify the operation and output from the Virtual Systems’ Managed Data Center. The Tests shall include, but are not limited to, network, application, and system performance.
Outage Credits.
If Virtual Systems fails to meet the Service metrics, then the Customer shall be entitled to a credit determined according to the following:
The length of the Service outage shall be measured in hours and fractional portions thereof. An outage shall be deemed to have commenced upon each verified notification by Customer to Virtual Systems. Each Outage shall be deemed to terminate upon restoration of the affected Customer as evidenced by appropriate network tests by Virtual Systems, and Virtual Systems’ notification to Customer. To receive credit, Customer must make a written request no later than forty-five (45) days of the end of the month in which the interruption occurred. This credit shall be the Customer’s sole and exclusive remedy for any failure by Virtual Systems to meet a Service metric. Virtual Systems may withhold issuance of any credits due the Customer under these Terms or the Customer Agreement until any past due amounts owed by the Customer have been paid in full. In no event will outage credits for a Service for any one month exceed 50% of the MRC for the Service. If a Service outage continues for more than twenty-four (24) hours during any thirty (30) day period then Customer may terminate this contract, by written notice, and the termination shall be effective no sooner than thirty (30) days after reporting the outage and the date at which the outage continued for 24 hours (for example: if an outage occurs and is reported on May 1, and continues for 24 hours until May 2, and the Customer provides written notice of termination on May 2, then the Customer Agreement may terminate on June 1). A notice of termination for an outage after thirty (30) days will shall not terminate the Customer Agreement. For Veeam Cloud Connect: an outage of greater than 60 minutes shall entitle the Customer to a credit of 25% of the applicable MRC, subject to the limitations above. For the avoidance of doubt, Veeam Cloud Connect shall consist of licenses and storage (GB) and such credit shall apply only to storage experiencing such outage. Credit will not include license fees.
Acceptable Use Policy.
Customer agrees to only use Service for lawful purposes and never in a way that may damage, disable, overburden, or impair the Service. Customer end users must not use the Service in any manner which violates any applicable laws of international or local jurisdictions including but not limited to copyright laws. Customer end users must not attempt to gain unauthorized access to the Service, Virtual Systems networks, servers, or other systems connected to the Service. Customer end users must also not interfere with security-related features of the Service or take any action that imposes an unreasonable load on Virtual Systems’ infrastructure. If Customer, or a third party through Customer, violates any of the Acceptable Use Policy, or any other Terms, Virtual Systems may immediately suspend the Service or terminate The Customer Agreement or Service for cause and without further liability or obligation to Customer.
Additional Charges.
Customer’s request of Virtual Systems’ consulting and help desk assistance (“Customer Requests”) shall be invoiced at a rate of One Hundred Eighty-Five and 00/100 Dollars ($185.00) per hour for any time Monday through Friday, 8AM EST to 5PM EST (“Regular Assistance Hours”) Customer Requests made outside the Regular Assistance Hours or on United States federal holidays, shall be invoiced at a rate of Three Hundred Seventy and 00/100 Dollars ($370.00) per hour plus applicable emergency charges, in Virtual Systems’ sole discretion (“Emergency Rate”). The Customer may schedule a Customer Request, more than 3 business days in advance of the requested assistance, outside the Regular Assistance Hours, and such request shall be invoiced at a rate of Three Hundred and 00/100 Dollars ($300.00) per hour. Requests for datacenter access that are needed less than 3 business days in advance of the request will be billed at the Emergency Rate, unless the access time occurs outside of the Regular Assistance Hours. If the access occurs outside of the Regular Assistance Hours, then the access shall be invoiced at double the Emergency Rate.
Original Document.
A facsimile or scanned copy of the Customer Agreement and the signatures thereon are deemed to be originals by both parties hereto.
Indemnification.
Customer and customer end users agree to indemnify, defend, and hold Virtual Systems harmless from and against all claims, losses, expenses, damages and costs, including reasonable attorney’s fees, resulting from any violation of the Customer Agreement and Terms. Customer end users also agree to indemnify and hold Virtual Systems harmless for any third party claim related in any way to the Service or Content, and the Customer shall be responsible for notifying them of the above, as required by any applicable law or regulation.
Virtual Systems acknowledges that the reciprocal also applies when claims are filed against Customer for the same reasons.
Limitation of Liability.
Neither Virtual Systems nor its affiliates, subsidiaries, employees or suppliers shall be liable to Customer for any special, indirect, incidental, punitive or consequential damages, (including without limitation, lost profits, lost revenues, and loss of business opportunity) arising out of or related to the Terms, Customer Agreement, or the Service, however caused and under whatever theory of liability (including without limitation, strict liability and negligence), even if such party has been advised of the possibility of such damages. Virtual Systems’ liability for all claims of any kind arising out of or related to the Terms, Customer Agreement, or the Service, whether based on contract, tort, including, without limitation, strict liability and negligence, warranty or on other legal or equitable principles shall be limited to strict money damages and shall not exceed in the aggregate, fees paid by Customer to Virtual Systems during the twelve (12) month period immediately preceding the event giving rise to liability. Virtual Systems may disclose user information if required by a governmental agency, or by operation of law, or, if necessary, in any proceeding to establish rights or obligations under the Terms, Customer Agreement, or the Service.
Disclaimer of Warranties.
The customer assumes all responsibility for the use of the Service and any associated equipment. Virtual Systems is not responsible for any security breaches, loss, or unauthorized access of stored data, or any damages caused by the customer’s actions, omissions, or failure to comply with the terms of the agreement.
Virtual Systems does not provide any express, implied, or statutory warranties, including but not limited to, warranties of non-infringement, merchantability, and fitness for a particular purpose, with respect to any services or equipment provided under the Service or Customer Agreement. All such warranties by Virtual Systems are hereby excluded and disclaimed.
Virtual Systems does not guarantee that the product or service will meet the customer’s requirements, or that it will be error-free or uninterrupted.
Virtual Systems reserves the right to modify this disclaimer of warranties clause at any time without notice. The user’s continued use of the product or service provided by Virtual Systems constitutes acceptance of any such modifications.
Ownership of Intellectual Property
Other than rights and interests expressively set forth in the Terms, Customer Agreement, or the Service, the Parties retain all right, title, respective trade secrets, inventions, copyrights, and other intellectual property.
Confidentiality
1. The Parties agree that all information furnished to it by the other party, or to which it has access under the Terms, Customer Agreement, or the Service, shall be deemed Confidential and Proprietary Information or Trade Secrets (collectively referred to as “Proprietary Information”) of the disclosing party and shall remain the sole and exclusive property of the disclosing party. Each party shall treat the Proprietary Information and the contents of the Customer Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under the Terms, Customer Agreement, or the Service, neither party may directly or indirectly disclose the same to anyone other than its employees and agents who have a need to know the Proprietary Information;
2. The confidentiality obligations of this section do not apply to any portion of the Proprietary Information which is or becomes (a) public knowledge through no fault of the receiving party; (b) in the lawful possession of the receiving party prior to disclosure to it by the disclosing party (as confirmed by the receiving party’s records); (c) disclosed to the receiving party without restriction on disclosure by a person who has the lawful right to disclose the information; or (d) disclosed pursuant to the lawful requirements or formal request of a governmental agency. If the receiving party is requested or legally compelled by a governmental agency to disclose any Proprietary Information of the disclosing party, the receiving party agrees that it will provide the disclosing party with prompt written notice of such requests so that the disclosing party has the opportunity to pursue its legal and equitable remedies regarding potential disclosure;
3. The Parties acknowledge that a breach or threatened breach of this section may cause the disclosing party irreparable harm which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the receiving party agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the disclosing party may be entitled;
4. Neither party may use the name, logo, trade name, service marks, or printed materials of the other party, in any promotional or advertising materials, statement, document, press release or broadcast without the prior written consent of the other party, which consent may be granted or withheld at the other party’s sole discretion
5. Any broadcast without the prior written consent of the other party, which consent may be granted or withheld at the other party’s sole discretion
6. Any obligations of the parties relating to confidentiality survive termination of the Terms, Customer Agreement, or the Service for a two (2) year period.
If Customer and Virtual Systems choose to enter into a separate Non-Disclosure Agreement (“NDA”), then the terms and conditions of the NDA shall supersede the “Confidentiality” terms contained above in this section.
Assignment.
The Customer Agreement or Service shall not be assigned by the Customer or Virtual Systems without the prior written consent of the other party.
Successors and Assigns.
All of the terms and provisions of the Terms and Customer Agreement shall be binding upon, shall ensure to the benefit of, and be enforceable by the successors and assigns of the parties to the Terms or Customer Agreement.
Entire Agreement.
The Terms, Customer Agreement, and any agreement to which they specifically refer, contain all of the terms between the Parties with respect to the provision of the Service and may only be amended by mutual written agreement of the Parties. However, Virtual Systems reserves the right to modify the Terms at any time in its sole discretion.
Severability.
The unenforceability of any provision of the Terms or Customer Agreement shall not affect the enforceability of the remaining provisions of the Terms or Customer Agreement.
Force Majeure.
Neither party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control, including but not limited to acts of God, pandemic, disease, epidemic, fire, explosion, vandalism, cable cuts, storms or other similar catastrophes; any law, order, regulation, direction, action or request of the United States government, or of any other government, including state and local governments having jurisdiction over either of the parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority; national emergencies; insurrections, riots, wars, or strikes, lockouts, work stoppages or other labor disputes or difficulties. Notwithstanding anything to the contrary set forth herein, Customer agrees that payment obligations hereunder shall be absolute and not subject to delay due to any event of force majeure.
Notices.
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including Invoices) shall be in writing and shall be deemed to be delivered when actually received, whether upon personal delivery or if sent by facsimile, mail, or overnight delivery. All notices to Virtual Systems shall be addressed as follows, or to such other address as Virtual Systems may provide to the Customer: Virtual Systems Attn: Legal Notices 2450 44th Street Grand Rapids, MI Michigan 49512 AND Grand Rapids, MI Michigan 49512 Virtual Systems 2450 44th Street. Any notice to the Customer shall be made to the address provide in writing to Virtual Systems by the Customer or contained in the Customer Agreement.
Regulatory Requirements.
If the Federal Communications Commission, a state Public Utilities or Service Commission or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of changing or superseding any material term or provision of the Terms or Customer Agreement, including rates, surcharges or taxes, then the Terms and Customer Agreement shall be deemed modified in such a way as is consistent with the form, intent or purpose of the ruling.
Governing Law.
The Terms and Customer Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan, without regard to conflict of law principles. The parties agree that the state courts of Michigan shall have sole and exclusive jurisdiction, and Kent County shall be the proper venue, of any claim or controversy regarding the Terms and Customer Agreement or its subject matter, including without limitation, claims for breach of contract, breach of warranty, statutory violation, negligence or other tort. The Parties agree that the exclusive jurisdiction (personal and, as allowed, subject matter) and venue for any claim or controversy relating to the Terms and Customer Agreement including without limitation, claims for breach of contract, breach of warranty, statutory violation, negligence or other tort shall be a federal or state court in Kent County, Michigan and the parties hereby consent to such jurisdiction and venue.
Export Matters.
Customer represents and warrants that Customer is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons to whom Virtual Systems is legally prohibited to provide the Service. Customer may not use the Service 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, nor may Customer provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations