IO Legal Policies, Rules and Regulations and Terms of Service.
- Terms and Service
- Acceptable Use Policy
- Digital Millennium Copyright Act (DMCA)
- Rules and Regulations
- End User License Agreement
- Software Maintenance Services Terms and Conditions
- Hardware Maintenance Services Terms and Conditions
Terms of Service
This agreement sets forth the terms and conditions that apply to use of io.com, including, without limitation, IO services (collectively, the “Service”) by a visitor to io.com (“User”). By using io.com (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. The right to use io.com is personal to User and is not transferable to any other person or entity. IO (“IO”) shall have the right at any time to change or discontinue any aspect or feature of io.com.
2. CHANGED TERMS
IO shall have the right at any time to change or modify the terms and conditions applicable to User’s use of the Service. Such changes shall be effective immediately upon notice thereof, which may be given by posting on io.com. Any use of the Service by User after such notice shall be deemed to constitute acceptance by User of such changes.
3. USER CONDUCT
a. User shall use the Service for lawful purposes only. Any conduct by a User that in IO’s discretion restricts or inhibits any other User from using or enjoying the Service is not allowed.
b. User shall not use or permit or facilitate others to use the Service by automated electronic processes, “robots,” “spiders,” “scrapers,” “webcrawlers,” or other computer programs that monitor, copy or download data or other content found on or accessed through the Service.
c. The Service contains copyrighted material, trademarks and other proprietary information and the entire contents of the Service are copyright protected as a collective work under United States copyright laws. User may not modify, publish, transmit, or create derivative works of or from, or in any way exploit, any of the content found at io.com at any time, in whole or in part. User may download copyrighted material for User’s personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of IO. In the event of any permitted copying, redistribution, retransmission, commercial exploitation or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. User acknowledges that it does not acquire any ownership rights by downloading copyrighted material.
d. User is solely responsible for any content User creates, transmits or displays while using the Service and for any consequences of such actions.
e. User represents and warrants that it has the necessary rights and permissions to use and to authorize IO to use the patent, trademark, trade secrets and any other proprietary rights in and to any and all submissions. User further represents and warrants that User shall not submit any material that is unlawful, obscene, defamatory, harassing or otherwise, nor post any advertisements or solicitations.
f. User acknowledges and agrees that IO owns all legal right, title and interest in and to the Service. Nothing herein gives User the right to use any of IO’s name, trademarks or logos.
g. User acknowledges and agrees that by submitting, displaying or posting content on the Service, User hereby gives IO a perpetual, irrevocable, royalty free, worldwide license to use, store, distribute, copy, and display any such content on or through the Service for promotional and marketing purposes.
3. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
a. User expressly agrees that use of the Service is at User’s sole risk. Neither IO nor its directors, officers, employees or agents warrant that the Service will be uninterrupted or error-free.
b. The Service is provided on an “as is” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
c. In no event will IO be liable for any damages, including, without limitation, direct, indirect, incidental, special, consequential or punitive damages arising out of the use of or inability to use the Service.
User agrees to defend, indemnify and hold harmless IO and its affiliates and each of their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Service by User.
Either IO or User may terminate this Agreement at any time.
a. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws rules. The parties agree to jurisdiction in Maricopa County, Arizona. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
This is the Website of IO.
615 N. 48th St.
Phoenix, AZ 85008
WHAT INFORMATION WE COLLECT
We collect two types of information: personally identifiable information and non-personally identifiable information. Our service providers also mass aggregates client data as part of its general business practices. This aggregated data is used to identify and analyze trends to improve our systems and to create derivative materials that may be marketed to potential clients and used to service current clients; it does not contain personally identifiable information regarding you.
Personally Identifiable Information
Non-Personally Identifiable Information
Information from Other Sources
We also may supplement the information we collect with information from other sources to assist us in providing our goods and services. In addition, we may use this supplemental information in evaluating and improving our goods and services and to determine your preferences so that we can tailor our Website and goods and services to your needs. Information obtained from other sources and compiled with your information by us is the sole property of IO.
WHERE AND WHEN IS INFORMATION COLLECTED ON OUR WEBSITE
We may collect information (including Personally Identifiable Information) regarding you in different manners and at different places and times throughout our Website. The following is a description of the areas and/or manners in which we primarily collect information about you.
Becoming a Registered User
We may ask that you complete certain steps to become a registered user of the Website. In such instance, you may be required to provide us with information (including Personally Identifiable Information) such as your personal information or that of your company (e.g. name, business address, email address and information regarding your business).
Cookies and Action Tags
We also may collect Non-Personally Identifiable Information passively using cookies and action tags through our Website. Cookies are small text files that are placed on your computer in order to identify: (i) your Web browser; (ii) the activities of your computer on our Website; and (iii) your activity in connection with our marketing and promotional efforts.
Cookies may be used to: (i) personalize your experience on our Website (e.g. to dynamically generate content on web pages specifically designed for you); (ii) assist you in using our services (e.g. to save you time by not having to reenter your name upon each visit to our Website); and (iii) allow us to statistically monitor how you are using our Website for purposes of improving our offerings.
You do not have to accept cookies to use our Website; however, you may not be able to use certain offerings, features or resources of our Website if you do not accept cookies. Although most browsers are initially set to accept cookies, you may reset your browser to notify you when you receive a cookie or to reject cookies generally. Most browsers offer instructions on how to do so in the Help section of the toolbar.
Action tags, also known as web beacons or gif tags, are a web technology used to help track website usage information, such as how many times a specific page has been viewed. Action tags are invisible to you, and any portion of our Website or email sent to you on our behalf, may contain cookies that are associated with action tags that are located on our Website. Unlike cookies, action tags are not placed on your computer.
We may select and use different third parties from time to time to track website usage through action tags on our Website and on our advertisements on other websites.
If you do not want to receive email from us in the future, please let us know by sending us an email to firstname.lastname@example.org or by calling us at 866.676.5901.
If you supply us with your postal address on-line you may receive periodic mailings from us with information on new products and services or upcoming events. If you do not wish to receive such mailing, please let us know by sending us an email at the email address above or calling us at the phone number above.
Persons who supply us with their telephone numbers on-line may receive telephone contact from us with information regarding new products and services or upcoming events. If you do not wish to receive such telephone calls, please let us know by sending us an email at the email address above or by calling us at the phone number above.
Acceptable Use Policy
This Acceptable Use Policy (this “Policy”), including the following list of Prohibited Activities, is an integral part of your Agreement with IO or any of its subsidiaries, including, without limitation, Exacent, LLC d/b/a IO On Demand (collectively, “IO”). Please read this Policy carefully. If you engage in any of the activities prohibited by this Policy document, IO may exercise a variety of legal remedies, including, but not limited to, the suspension or termination of your network access and/or account with IO.
This Policy is designed to help protect IO, IO’s customers and the Internet community in general from irresponsible and/or illegal activities. This Policy is a non-exclusive list of the actions prohibited by IO and IO reserves the right to modify this Policy at any time, provided that IO provides its customers with at least seven (7) days prior written notice. IO reserves the sole and absolute right to interpret, apply, define and implement this Policy.
Prohibited Uses of IO systems and services, include the following:
1. Transmission, distribution or storage of any material in violation of any applicable law or regulation. This prohibition includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
2. Sending Unsolicited Bulk Email (“UBE” or “spam”). The sending of any form of UBE through IO’s systems is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, landing page, email address or utilizing any IO’s resources, is prohibited. IO’s accounts or services may not be used to solicit customers from, or collect replies to messages sent from, another Internet Service Provider where those messages violate this Policy or the policy or terms of service of another provider.
3. Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by IO customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list.
4. Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Policy or the policy of any other Internet Service Provider. This prohibition, includes, but is not limited to, the facilitation of the means to send UBE, initiation of pinging, flooding, mail-bombing and denial of service attacks.
5. Operating an account on behalf of, or in connection with, or reselling a service to persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org or accessing networks that appear on commonly used blacklisted networks including, but not limited to, Don’t Route or Peer (“DROP”) list at www.spamhaus.org. IO reserves the right to restrict or deny access to all such networks.
6. Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (e.g., “hacking” and/or “cracking”).
7. Obtaining or attempting to obtain service by any means or device with the intent to avoid or reduce payment.
8. Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any IO customers or end-users by any means or device.
9. Knowingly engaging in any activities designed to harass, harm or cause damage to IO or a third-party, including, but not limited to, denial-of-service (e.g., synchronized number sequence) attacks directed at any other user, whether on the IO network or on another provider’s network.
10. Using IO’s Services to interfere with the use of IO’s network by other customers or authorized users.
CUSTOMER RESPONSIBILITY FOR CUSTOMER’S USERS
Each IO customer is responsible for the activities of its users and, by accepting service from IO, is agreeing to ensure that its customers/representatives or end-users abide by this Policy. Complaints about customers/representatives or end-users of an IO customer will be forwarded to the IO customer’s postmaster for action. If violations of this Policy occur, IO reserves the right to terminate services with or take action to stop the offending customer from violating this Policy as IO deems appropriate, with or without notice.
Digital Millennium Copyright Act (DMCA)
IO is not responsible for the content on any websites that may be hosted by IO. However, such content may be protected by United States copyright and/or other intellectual property laws. IO will respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). IO’s response to any such notice may include removing or disabling service of customers who may infringe or terminating such customer’s service. In the event IO removes, disables or terminates service, IO will make a good faith attempt to contact the affected site or content provider so that they may make a counter notification.
NOTICES OF INFRINGEMENT
Copyright owners or their authorized agents that believe their copyright protected content is being infringed must submit a notification in accordance with the DMCA Notice of Infringement by filing the notice with IO’s Copyright Agent with the information set forth below:
1. Identification in sufficient detail of the copyrighted work claimed to have been infringed.
2. Identification in sufficient detail of the material that is claimed to be infringing or to be the subject of infringing activity.
3. Information sufficient to permit IO to locate the material.
4. Information sufficient to permit IO to contact the complaining party, such as address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (For example, “I have a good faith belief that use of the materials described above as allegedly infringing is not authorized by the copyright owner, its agent or the law.”)
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (For example, “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner” or “I am the authorized agent acting on behalf of the owner of an exclusive right that is allegedly infringed.”)
7. A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
8. Send the written communication to the following address:
Attn: Copyright Agent
615 N. 48th St.
Phoenix, AZ 85008
OR Fax to:
Attn: Copyright Agent
OR email to:
The DMCA Notice of Infringement may not be valid if all of the requirements set forth above are not followed. Please note that any notification that materially misrepresents that content or activity is infringing copyrights may subject the complaining party to liability for damages (including attorneys’ fees and costs).
Pursuant to Sections 512(g) (2) and (3) of the DMCA, the provider of the affected site or content may file a counter notification (“Counter Notification”). Upon receipt of a Counter Notification, IO may reinstate the alleged infringing materials or content. To file a Counter Notification, the affected provider shall provide a written communication (by regular mail, fax or email) including the items set forth below:
1. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
2. A statement under penalty of perjury that the provider has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled. (For example, “I swear, under penalty of perjury, that I have a good faith belief that the content or activity identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”)
3. The providers name, address and telephone number, and a statement that the provider consents to the jurisdiction of the Federal District Court for the judicial district in which the provider’s address is located (or Maricopa County, Arizona if the address is outside of the United States) and that the provider will accept service of process from the person who provided notification under subsection (c) (1)(C) of the DMCA or an agent of such person.
4. A physical or electronic signature of the provider.
5. Send the written communication to the following address::
Attn: Copyright Agent
615 N. 48th St.
Phoenix, AZ 85008
OR Fax to:
Attn: Copyright Agent
OR email to:
Please note that any Counter Notification that materially misrepresents that content or activity is not infringing the copyright of others may subject the provider to liability for damages (including attorney’s fees and costs).
Rules and Regulations
Capitalized terms not otherwise defined herein shall have the meanings set forth in that certain License and Master Services Agreement between Customer and Licensor.
1. APPLICABILITY OF RULES AND REGULATIONS.
These Rules and Regulations apply to each Customer of Licensor and their respective Representatives, employees, contractors, customers, agents, invitees and users of the Data Center and/or the Related Data Center Services. In addition, Customer’s online facilities, and those utilizing such online facilities, are subject to these Rules and Regulations. Licensor reserves the right to apply and enforce the Rules and Regulations so as to maintain the integrity, reliability and legality of the Data Center and the Related Data Center Services.
2. ACCESS TO DATA CENTER.
Only those individuals identified by Customer as its Representatives may access the Customer Area, Customer may not allow any person other than its Representatives to access the Data Center or the Customer Area (i.e., no tag alongs). Licensor reserves the right to deny or restrict access to any Customer or Representative that is in violation of Customer’s Agreement.
Licensor may always restrict access to the Data Center or the Customer Area in an emergency and/or in response to a governmental request.
Customer agrees to adhere at all times to any reasonable security measures which may be established by Licensor with respect to the Data Center, Modules, Customer Equipment and all other equipment contained in the Data Center.
Customer acknowledges that Licensor is using closed circuit TV/audio and other surveillance measures.
Customer shall park in the Customer designated parking areas.
3. USE OF DATA CENTER.
Customer, Representatives and Customer’s invitees shall (a) comply with Law and Licensor’s rules and restrictions (including these Rules and Regulations), (b) present and deposit photo identification to the satisfaction of Licensor, (c) respect the property and observe the rights of other customers, and (d) not enter restricted areas.
Customer shall make all installations and repairs which require Licensor’s support or supervision only during Licensor’s normal business hours. (Monday through Friday from 7 am until 4 pm local time) unless otherwise arranged with Licensor.
Customer must keep the Customer Area clean at all times. Customer may not store any paper products, cardboard, boxes or other materials in the Customer Area (other than equipment manuals). All empty boxes, crates and trash will be removed from the site by Customer or discarded at the site per Licensor’s instructions. No flammable materials may be stored in the Data Center by Customer or its Representative.
Customer may not bring, or make use of, any of the following in the Data Center: (a) Food or drink, (b) Alcohol, illegal drugs or other intoxicants, (c) Ignited or previously ignited tobacco or nicotine products, (d) Electro-magnetic devices, (e) Explosives or pyrotechnics, (f) Radioactive materials, (g) Weapons, (h) Other than as may be included in a hand held smart phone device, photographic or recording equipment of any kind, (i) Chemicals or hazardous materials or (j) any other material reasonably determined by Licensor to be inconsistent with the operation of the Data Center.
Smoking is not permitted at any time in or near the Data Center. Smoking outside of the Data Center shall be in designated areas only.
Children under the age of sixteen (16) are not permitted in the Data Center.
Customer shall comply with Licensor’s Emergency Action Plan.
In the event Customer requests assistance from Licensor related to the Related Data Center Services pursuant to an open help ticket or otherwise, and Licensor determines the origin of Customer’s issues is due to Customer, Licensor reserves the right to charge Customer for resolution of such issue at a rate of $200 per hour (with the first hour being at no cost to Customer).
4. MODIFICATION TO DATA CENTER.
Except for ordinary course work (e.g., installation and removal of servers, routers and similarly sized equipment as part of the normal course of business) upon ten (10) days’ prior written notice, Customer shall submit written plans and requests for any required equipment installation or removal within the Data Center. Licensor reserves the right, in its sole and absolute discretion, to approve or disapprove such plans, provided that if Licensor determines to disapprove such plans it shall provide Customer with specific reasons for its decision.
Modifications to any system within the Data Center shall be made only by Licensor or under its direct control. Customer shall have no right whatsoever to move, install or otherwise use any common system (e.g., electric, HVAC, fire/life safety, communications) without the prior written approval of Licensor. All work to common structures (e.g., ladder rack, floors, ground system, etc.) shall be performed only by Licensor.
5. EQUIPMENT AND CONNECTIONS.
All Customer Equipment must be clearly labeled with Customer’s name (or code name provided to Licensor) and an individual component identification tag. All cables and connections to and from Customer Equipment must be clearly labeled. Licensor reserves the right to remove or disconnect unidentified equipment and cables in the Data Center.
All Customer Equipment must be certified by Underwriters Laboratories (UL Certified) and comply with local building code and applicable regulations of the Federal Communications Commission.
Except for ordinary course work as described above, Customer may not connect or disconnect any Customer Equipment or other equipment except as specifically pre-approved by an authorized employee of Licensor, at least forty-eight (48) hours in advance of the proposed action, unless otherwise approved by Licensor. A Customer which is not then current in its payment obligations to Licensor may not remove any equipment from the Data Center.
Customer must follow hot and cold aisle designations when installing Customer Equipment, and otherwise.
Customer Equipment must be configured and run at all times in compliance with the manufacturer’s specifications, including electrical load, clearance and weight load requirements.
Customer may not place equipment in the Data Center which is materially damaged, is of disputed title or otherwise subject to dispute.
6. SCHEDULED MAINTENANCE.
Routine and ongoing maintenance of systems is critical to the proper and reliable operation of a data center and should be expected by Customer. Periodically, Licensor will conduct scheduled maintenance of its Data Center and/or the Modules, the systems therein and of the Related Data Center Services. Licensor seeks to minimize the impact of such operations on Customer. During such time, the Data Center, the Modules and Related Data Center Services may not function at optimal performance or any performance at all and Customer may be unable to access its data or Customer Equipment. Customer agrees to cooperate with Licensor during scheduled maintenance periods so that Licensor may keep such period of time to a minimum.
7. EMERGENCY PROCEDURES.
In the event Licensor believes in its sole judgment that an emergency situation exists regarding the Data Center, the Customer Business, Customer Area, Customer Equipment and/or Customer Materials, Customer grants Licensor permission to access the Customer Area, Customer Equipment and/or Customer Materials so that Licensor may attempt to remedy the emergency situation. Licensor shall make commercially reasonable efforts to promptly notify Customer of the emergency situation and Licensor shall not be liable for any damage (including, without limitation, damage to the Customer Area, Customer Equipment and/or Customer Materials), caused by Licensor or any third parties in attempting to evaluate or remedy the emergency situation.
Customer and its Representatives may not engage in the following activities (Licensor reserves the right to exclude anyone from the facility who violates the following):
Damage, deface, misuse or abuse any property or equipment in the Data Center;
Act in a careless or reckless manner or otherwise threaten the orderly operation of the Data Center;
Make unauthorized contact or interference with any property or equipment of Licensor or any other customer of Licensor;
Use fraud, artifice or subterfuge to gain access to any area of the Data Center to which they are not authorized;
Harass threaten or harm any individual, including Licensor personnel and representatives of other customers of Licensor; or
Engage in any activity that is in violation of the Law, or aid others in criminal activity while at the Data Center or in connection with the Related Data Center Services; or allow unauthorized access to the Data Center.
9. MODIFICATION OF RULES AND REGULATIONS.
Licensor reserves the right to change these Rules and Regulations at any time, provided that it provides Customer with seven (7) day advance written notice. Customer is responsible for regularly reviewing these Rules and Regulations. The Rules and Regulations are always available in the Data Center or by email request to: TACC@.com. Continued use of the Related Data Center Services following any such changes shall constitute the Customer’s acceptance of such changes
END USER LICENSE AGREEMENT
1. Introduction and Acceptance. This End User License Agreement (this “EULA”) is a legal agreement between you (either an individual or the entity on whose behalf you are agreeing to the terms of this EULA, the “Licensee”) and IOA USA, LLC and its affiliates (“IO”), regarding the use of the proprietary IO software (the “Software”) that is provided to Licensee and which may be loaded, incorporated or embedded in related IO hardware device(s) (each, a “System”). This EULA may be modified from time to time with the most current version available at www.io.com/legal. BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY INSTALLING OR USING THE SOFTWARE, YOU HAVE INDICATED THAT YOU UNDERSTAND, AGREE TO BE BOUND BY, AND BIND LICENSEE BY, AND LICENSEE, IS BECOMING A PARTY TO, THIS AGREEMENT. BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE SOFTWARE LICENSE GRANTED IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY A PERSON WHO IS AUTHORIZED TO SIGN FOR AND BIND THE LICENSEE. YOU REPRESENT THAT YOU ARE A PERSON WHO IS AUTHORIZED TO SIGN FOR, AND BIND THE LICENSEE. IF YOU ARE NOT AUTHORIZED TO SIGN FOR AND BIND THE LICENSEE, THEN CLICK ON THE BUTTON MARKED “I DECLINE” AND DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR THE LICENSE KEY FOR THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DECLINE” BUTTON AND THE SOFTWARE WILL NOT BE AVAILABLE FOR USE ON OR WITH LICENSEE’S SYSTEM. IF YOU CLICK THE “I DECLINE” BUTTON, PLEASE DESTROY, RETURN OR DELETE ALL COPIES OF THE SOFTWARE AND ANY LICENSE KEYS IN LICENSEE’S POSSESSION.
2. License Grant. Subject to, and conditioned upon Licensee’s compliance with, the terms and conditions of this EULA, IO hereby grants to Licensee, a limited, non-exclusive, personal, non-transferable, non-sublicensable license to access, install, download, execute and interact with (collectively, “Use”) one (1) copy of the provided version of the Software, solely in accordance with the Documentation. No license or rights are granted with respect to any Software source code. Some third party materials included in the Software may be subject to other terms and conditions, which are typically found in a “Read Me” file or “About” file in the Documentation. You agree to read such other terms and conditions, and if you do not agree to accept such terms, do not Use the Software.
3. Term. THIS AGREEMENT SHALL BE EFFECTIVE UPON YOUR ACCEPTANCE OF THIS AGREEMENT, AND SHALL TERMINATE UPON LICENSEE’S FAILURE TO COMPLY WITH ANY TERM OF THIS AGREEMENT. IO’s rights and Licensee’s obligations shall survive any termination of this EULA. Upon termination of this EULA, Licensee shall return, destroy, or delete of all copies of the software in licensee’s possession or control, and shall certify in writing to IO that it has done so.
4. Ownership Rights. The Software is protected by the intellectual property laws of the United States of America and other international treaty provisions and other applicable laws in the country in which it is being used. As between IO and Licensee, IO owns and retains all right, title and interest in and to the Software, including any patents, copyrights, trade secret rights, associated trademarks and other intellectual property rights therein. Licensee’s possession or Use of the Software does not transfer to Licensee any title to the intellectual property in the Software, and Licensee will not acquire any rights to the Software except as expressly set forth in this EULA. Any copy of the Software authorized to be made hereunder, if any, must contain the same proprietary notices, including any notice of copyright, trademark, logo, legend or other notice of ownership, that appear on and in the original copy of the Software. Licensee is not an owner of any copy of the Software, including any original copy, provided by IO, which copy(ies) are owned by IO and licensed to Licensee under this EULA.
5. Restrictions. Licensee may not (and may not allow a third party to) sell, lease, license, rent, loan, resell or otherwise transfer, with or without consideration, the Software. Except with IO’s prior written consent, Licensee may not use as, or permit third parties to use or benefit from the Use of the Software via a timesharing, service bureau, transition service or any other arrangement. Licensee may not, and agrees not to: (a) derive source code from, reverse engineer, decrypt, decompile or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law; (b) modify, or create derivative works based upon, the Software, in whole or in part; (c) copy or distribute the Software; (d) remove any proprietary notices or labels on the Software; or (e) disclose, provide or otherwise make available trade secrets or other proprietary or confidential information contained within the Software or Documentation (as hereinafter defined) in any form to any party without the prior written consent of IO in each instance.
6. Software Updates; Limited Software Warranty..
a. Software. For a period of ninety (90) days after Licensee’s initial receipt of the Software from IO, IO warrants that the Software will perform substantially in accordance with its accompanying documentation (the “Documentation”). IO does not warrant that the Software is error free or that Licensee will be able to operate the Software without problems or interruptions.
b. Limitations. IO’s entire liability and Licensee’s exclusive remedy, for breach of the foregoing warranty shall be to receive any bug fixes, updates or upgrades to the Software then made available by IO to third parties eligible for warranty support. Any warranties herein shall be void if the failure of the Software results from accident, abuse, misapplication, use of third party software not approved or intended for use with the Software, utilization of an improper hardware or software key, unauthorized maintenance or repair of Software or other use of the Software other than in accordance with the terms of this EULA and the Documentation.
7. No Other Warranties. EXCEPT AS SET FORTH ABOVE, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. LICENSEE ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION OF, USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND FITNESS FOR LICENSEE’S PURPOSE WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOFTWARE, OR AGAINST INFRINGEMENT. IO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE SOFTWARE OR SYSTEM WILL BE CORRECTED.
8. Limitation of Liability. IO SHALL NOT BE LIABLE FOR ANY COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR ITS USE HEREUNDER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IO’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE LICENSE TO THE SOFTWARE UP TO A MAXIMUM OF THE LESSER OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00) AND THE SUM OF THE LICENSE FEE AND MAINTENANCE FEES PAID BY LICENSEE FOR THE SOFTWARE. THE FOREGOING LIMITATIONS ARE INDEPENDENT OF THE EXCLUSIVE REMEDY PROVIDED IN SECTION 6 ABOVE AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF SUCH EXCLUSIVE REMEDY OR OF ITS ESSENTIAL PURPOSE. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Notice to United States Government End Users. The software and documentation provided by IO pursuant to this EULA are “Commercial Items,” as the term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to United States Government end users (1) only as Commercial Items and (2) with only those rights as are granted to all other users pursuant to the terms of this EULA.
10. Export Controls. Licensee may not export or re-export the Software without: (a) the prior written consent of IO; (b) complying with applicable export control laws, including, but not limited to, restrictions and regulations of the Department of Commerce or other United States agency or authority; and (c) obtaining any necessary permits and licenses. In any event, Licensee may not transfer or authorize the transfer of the Software to a prohibited territory or country or otherwise in violation of any applicable restrictions or regulations.
11. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including, without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the System could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). IO expressly disclaims any express or implied warranty of fitness for High Risk Activities.
12. Governing Law. This EULA shall be governed by and construed under the laws of the State of Delaware without regard to the conflicts of law provisions thereof. The parties hereby irrevocably consent to the personal and exclusive jurisdiction and venue of the federal and state courts of Delaware, U.S.A.; provided, however, that in the event a court in Delaware, U.S.A. deems that it does not have jurisdiction over a particular matter, then with respect to such matter, the parties hereby irrevocably consent to venue and jurisdiction in the state and federal courts located in Maricopa County, Arizona. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
13. Miscellaneous. This EULA supersedes any other communications, representations or advertising relating to the Software. No provision hereof shall be deemed waived unless such waiver is in writing and signed by a duly authorized representative of IO. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. All rights not expressly set forth hereunder are reserved by IO.
SOFTWARE MAINTENANCE SERVICES TERMS AND CONDITIONS
1. Applicability; Defined Terms.
1.1. These terms and conditions apply to Software licensed by IO Data Centers, LLC or its affiliate (“IO”) to Customer (as defined below) pursuant to any purchase order or sales agreement (“Order”) executed by IO and Customer.
1.2. Capitalized terms not otherwise defined herein or in the Order shall have the meanings set forth below.
1.2.1. “Actual Point Quantity” means the highest average actual Customer Point usage (as determined by IO’s audit pursuant to Section 4) during any ninety (90) day period.
1.2.2. “Customer” means the person or entity identified as “Customer” on the applicable Order.
1.2.3. “Delivery Date” means the date on which IO delivers the Software to Customer regardless of the mode of such delivery.
1.2.4. “Documentation” means the Software user manual and all updates thereto, as well as any related technical manual, supporting materials and other information relating to the Software, whether distributed in print, electronic or other format.
1.2.5. “EULA” means the end user license agreement available at www.io.com/legal/.
1.2.6. “Initial SW Maintenance Term” means the one (1) year Software Maintenance term beginning on the Delivery Date applicable to the Software and ending on the one (1) year anniversary thereof.
1.2.7. “Point” means a measurement of a single type of data (e.g., speed, temperature, humidity, etc.) in a single, specific location (e.g., cooling fan X, PDU Y, cabinet Z, etc.).
1.2.8. “Point Fee” means the dollar amount per Point specified in the applicable Order.
1.2.9. “Software” means the machine readable (object code) version of the computer software made available by IO for license to Customer pursuant to the Order and the terms of the EULA, including any updates or upgrades provided by IO.
1.2.10. “Support Period” means the period of time during which IO will support any version of the Software. Unless otherwise noted at www.io.com/legal, the Support Period for each version of the Software will be three (3) years.
2. Software Maintenance Services.
2.1. During the Term (as defined below), IO shall license to Customer the Software described in each applicable Order, subject in all respects to the terms and conditions set forth in the applicable Order, these terms and conditions, the Documentation and the EULA.
2.2. Customer shall pay for the Software license(s), the SW Maintenance fees and shall fulfill all other obligations set forth in the applicable Order, these terms and conditions, the Documentation and the EULA.
3. SW Maintenance Terms and Fees
3.1. Subject to Section 3.4, each Software Maintenance term shall automatically renew for one (1) year (each, a “Renewal SW Maintenance Term” and, together with the Initial SW Maintenance Term, the “SW Maintenance Term”) upon the expiration of the Initial SW Maintenance Term or any Renewal SW Maintenance Term, as applicable, unless Customer provides IO with written notice of its intent not to renew the Software Maintenance services no later than sixty (60) days prior to the expiration of the Initial SW Maintenance Term or any Renewal SW Maintenance Term, as applicable.
3.2. For each Renewal SW Maintenance Term renewed pursuant to Section 3.1, Customer agrees to pay IO a Software Maintenance Fee (“SW Maintenance Fees”) equal to the product of (a) the Actual Point Quantity during the immediately preceding Initial SW Maintenance Term, as applicable, multiplied by (b) the Point Fee.
3.3. In the event Customer’s Actual Point Quantity exceeds the quantity of Points used to calculate Customer’s then-current Software Maintenance Fee by ten percent (10%) or more at any time during the SW Maintenance Term, IO reserves the right to increase Customer’s Software Maintenance Fee by an amount equal to the product of (a) (i) Customer’s Actual Point quantity, minus (ii) the quantity of Points used to calculate Customer’s then-current Software Maintenance Fee, multiplied by (b) the Point Fee.
3.4. IO shall have no obligation to renew any Software Maintenance Services after the expiration of the Support Period applicable to such version of the Software, provided that under no circumstances shall any Support Period be less than three (3) years.
4. Points Audit.
4.1. Unless terminated pursuant to Section 3.1, IO shall have the right to audit Customer’s use of the Software to determine Customer’s Actual Point Quantity for the Initial SW Maintenance Term, as applicable.
4.2. Customer hereby agrees (a) to run audit software provided by IO and transmit the results of such audit to IO no earlier than sixty (60) days and no later than thirty (30) days prior to the expiration of the Initial SW Maintenance Term and each Renewal SW Maintenance Term, (b) to otherwise run audit software provided by IO and transmit the results of such audit to IO promptly upon IO’s request, (c) to provide IO with reasonable assistance in connection with its audit, (d) to provide IO with reasonable access to all of Customer’s equipment that uses or has used the Software, (e) to retain the results of any audit and any other records reasonably requested by IO for a period of three (3) years and (f) to avoid tampering with or altering any audit software or mechanism. Customer further agrees that the results of IO’s audit shall be final.
5.1. Subject to Section 5.2, during the SW Maintenance Term, IO shall provide Customers in good standing with updates, versions, patches and IO known defect fixes.
5.2. IO (“Software Maintenance Services”) shall have no obligation to provide any Software Maintenance Services (including the support set forth in Section 5.1) for any version of the Software after the expiration of the Support Period applicable to such version.
6. Installation and Operation.
Customer shall be solely responsible for the infrastructure, data migration, operating system, data base, virtualization and installation of and related to the Software (including, without limitation, installation of upgrades, versions and patches) in accordance with the Documentation and all costs related thereto.
HARDWARE MAINTENANCE SERVICES TERMS AND CONDITIONS
1. Applicability; Defined Terms.
1.1. These terms and conditions apply to Hardware purchased by Customer (as defined below) from IO Data Centers, LLC or its affiliate (“IO”) pursuant to any purchase order or sales agreement (“Order”) executed by IO and Customer.
1.2. Capitalized terms not otherwise defined herein or in the Order shall have the meanings set forth below.
1.2.1. “Business Days” means any day except Saturday, Sunday or any other day on which commercial banks located in the same city as the Premises are authorized or required by law to be closed for business.
1.2.2. “Customer” means the person or entity identified as “Customer” on the applicable Order.
1.2.3. “Hardware” means the tangible, modular data center equipment, all component parts thereof and any tangible equipment or machinery related thereto, provided to Customer by IO as set forth in the applicable Order.
1.2.4. “Hardware Maintenance Services” means hardware maintenance or technical support and any other services (a) purchased pursuant to a valid Order performed or to be performed by or on behalf of IO (including by IO’s partners, affiliates, designees or service providers) and (b) consistent with the description set forth in Section 5 below.
1.2.5. “User Manual” means the user manual and all updates and amendments thereto, as well as any related technical manual, supporting materials and other information relating to the Hardware whether distributed in print, electronic or other format.
2.1. During the Hardware Maintenance Services Term (as defined in Section 3 below), IO will provide Customer the Hardware Maintenance Services as set forth in Section 5 for the Hardware set forth in Customer’s applicable Order and identified as IO equipment. IO will provide the level of Hardware Maintenance Services for the applicable Hardware as set forth on Customer’s applicable Order.
2.2. Customer shall pay for the Hardware Maintenance Services and shall fulfill all other obligations set forth in the applicable Order and these terms and conditions.
3. Term; Renewal Fees
3.1. The term for the Hardware Maintenance Services listed in the applicable Order shall commence upon the Start-Up Services Date for the applicable Hardware listed in the Order and continue for a period of one (1) year thereafter (the “Hardware Initial Maintenance Services Term”) unless otherwise stated in the order. The Hardware Initial Maintenance Services Term shall automatically renew for additional one (1) year periods (each, a “Hardware Renewal Maintenance Services Term”, and together with the Hardware Initial Maintenance Service Term, the “Hardware Maintenance Services Term”) at the then current rate for such Hardware Maintenance Services (the “Hardware Maintenance Services Price”), unless at least ninety (90) days prior to the date of the expiration of the Hardware Initial Maintenance Services Term or any subsequent renewal, either party provides the other party with written notice that it will not renew.
3.2. The Hardware Maintenance Services Price for any Hardware Renewal Maintenance Services Term or other periods subsequent to the Hardware Initial Maintenance Services Term during which Hardware Maintenance Services are performed shall be invoiced annually in advance and become due and payable no later than thirty (30) days following the date of such invoice.
4.1. IO warrants that the Hardware Maintenance Services provided hereunder shall be performed by IO or its designees in a professional and workmanlike manner. Customer must notify IO in writing of any warranty claims promptly, but in no event later than fifteen (15) Business Days after completion of the Hardware Maintenance Services that are the subject of a warranty claim. Customer’s sole and exclusive remedy for breach of this limited warranty shall be the re-performance of the Hardware Maintenance Services that are the subject of a warranty claim.
4.2. The limited warranties set forth in this Section 4 shall be void and of no effect and Hardware Maintenance Services shall no longer be provided effective immediately upon the occurrence of any of the following: (a) the expiration or termination of the Hardware Maintenance Services Term set forth in the applicable Order; (b) Customer’s sale, assignment, transfer or other disposition of any Hardware, (c) any Customer modification or alteration of any Hardware, (d) any operation or use of the Hardware not in accordance with the User Manual, (e) any installation, maintenance or repair not performed (i) by an IO certified System Installation Support and Maintenance Partner or (ii) in accordance with the User Manual; (f) Customer’s failure to provide IO (or its designee) access to the Hardware; or (g) any damage, neglect or abuse of the Hardware caused by any party other than IO or its designees. In such event, Customer shall have the ability, at Customer’s cost, to have the affected Hardware inspected, repaired (to the extent necessary) and re-certified by IO. Upon completion of re-certification by IO and receipt by IO from Customer of all costs incurred for such re-certification, the warranties and Hardware Maintenance Services shall be reinstated provided that the applicable Hardware Maintenance Services Term has not expired or been terminated.
4.3. EXCEPT AS SPECIFIED IN THIS AGREEMENT, IO HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, NON-INTERFERENCE, TITLE, QUIET ENJOYMENT, QUALITY OR ARISING FROM ANY COURSE OF DEALTING, COURSE OF PERFORMANCE OR USAGE IN THE INDUSTRY. IN THE EVENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY SHALL BE LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD AND THE REMEDIES SET FORTH IN THIS SECTION 4 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH THEREOF. IO DOES NOT WARRANT THAT ANY HARDWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.
5.1. During the applicable Hardware Maintenance Services Term, IO shall provide the level of Hardware Maintenance Services as indicated in the applicable Order and as defined below.
|SERVICE FEATURE||Hardware Maintenance Service Levels|
|Remote Technical Support||
|Replacement Parts and Installation||