Digital Convergence Technologies (DCT) General Terms and Conditions

1. DEFINITIONS.

1.1. “Acceptable Use Policy” or “AUP” shall have the meaning set forth in Section 2.2.a.

1.2. “Accepted” or “Acceptance” means a Party’s authorized execution of a document.

1.3. “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future.  An entity shall “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.

1.4. “Agreement” means (i) these General Terms and Conditions, (ii) Service Order and/or Statement of Work executed by the Parties; and (iii) any other document that is expressly incorporated by reference in this Agreement, a Service Order and/or a Statement of Work. 

1.5. “Change of Control means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party’s equity owners of record immediately before such transaction(s) shall, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.

1.6. “Confidential Information means proprietary, nonpublic or trade secret information, disclosed in written, oral or visual form, that the disclosing Party, its Affiliates or agents (each, a “Disclosing Party“) provides to the receiving Party, its Affiliates or agents (each,  a “Receiving Party“) and that Disclosing Party designates as being confidential or, if disclosed orally, states to be confidential at the time of initial disclosure, or if not so marked or stated should reasonably have been understood to be confidential as to Disclosing Party, either because of the circumstances of disclosure or the nature of the information itself and that (a) relates to Disclosing Party, its products, services, developments, trade secrets, know-how or personnel; and (b) is received by Receiving Party from Disclosing Party during the Term. 

1.7. “Customer” means a customer that uses or purchases Services pursuant to this Agreement solely for such customer’s use.    “Customer” includes a Resale Customer as defined herein.

1.8. “Customer Content means any digital assets and data provided by Customer and/or Resale Customer to DCT for storage, delivery or other processing associated with the Services, uploaded or routed to, passed through and/or stored on or within DCT’s applicable network or otherwise provided to DCT.  

1.9. “Customer Data” shall have the meaning set forth in Section 5.1.

1.10. “DCT” means Digital Convergence Technologies, Inc.

1.11. “Effective Date” means the effective date of the Agreement. Unless otherwise specified in the Service Order and/or Statement of Work, the Effective Date is the date on which the last party signs the Service Order.

1.12. “End User” means a subscriber to, member of or other visitor to an online site or service owned and/or operated by Customer or Resale Customer who uses, benefits from or accesses the Services.

1.13. “End User Data” shall have the meaning set forth in Section 5.1.

1.14. “Force Majeure Event” shall have the meaning set forth in Section 14.4.

1.15. “Intellectual Property Rights” means all rights in, to, or arising out of (a) any U.S., international or foreign patent or any application thereof and any and all reissues, divisions, continuations, renewals, extensions, continuations-in-part, utility models, and supplementary protection certificates thereof; (b) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information or materials, know-how, technology and technical data; (c) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; (d) trademarks, service marks, trade names, domain names, logos, trade dress, and all goodwill associated therewith; and (e) any other proprietary rights of a similar nature anywhere in the world now or hereafter recognized. 

1.16. “MRC” means the monthly recurring charge for Services.

1.17. “Open-Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public Licensor GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open-Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third Party of any source code with which such software component is used or compiled.

1.18. “Parties” means Digital Convergence Technologies, Inc. (“DCT”) or Customer; “Party“ means DCT or Customer.

1.19. “Resale Customer” means a Customer that purchases Services through a Reseller.

1.20. “Reseller” means an entity authorized by DCT to sell Services.

1.21. “Service Order or “SO” means a specification of Services to be performed by DCT and the associated fees or charges, as agreed by the Parties.  

1.22. “Services” or “Platform/Services” shall have the meaning set forth in Section 1 of Exhibit A. 

1.23. “Service Supplement” means any attachment to this Agreement setting forth the description, rates, service levels and other applicable terms for the Service identified.

1.24. “Statement of Work” or “SOW” means a specification of the non-standard (i.e., custom or professional) Services to be performed by DCT and the associated fees or charges, as agreed by the Parties.  

1.25. “Taxes means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges, including all excise, use, sales, value-added and other fees, surcharges and levies.

1.26. “Term” shall have the meaning set forth in Section 12.1.

2. SERVICES.

2.1.  Services.   DCT shall provide the Platform/Services to Customer as specified in a mutually Accepted SO, SOW or Service Supplement, subject to the terms and conditions herein (including any terms or conditions in the applicable SO, SOW and/or Service Supplement).  All SOs and SOWs must be in writing and Accepted by an authorized representative of each Party, and refer to the Agreement by number or by title and date.  Customer shall not white label or otherwise re-brand the Services for resale without advance written consent from DCT. 

2.2. Acceptable Use, Technical Cooperation 

     a. Customer is responsible for and assumes all liabilities arising out of or related to Customer Content.  Customer acknowledges that DCT is a mere intermediary (i.e., passive conduit) for transmission of Customer Content and does not exercise editorial or other control over Customer Content.  The applicable DCT Privacy Policy (“Privacy Policy“) and DCT Acceptable Use Policy (“AUP“) for the Services are available at www.DCT.io/terms/aup/ or other URL designated by DCT.  Customer shall not provide to DCT any Customer Content that may compromise the Services, is inappropriate and/or violates or is inconsistent with the AUP.  If DCT determines, in its sole discretion, that Customer Content or any use of Services violates the AUP or otherwise adversely impacts the Services, DCT reserves the right to take remedial measures including blocking or disabling access.  DCT shall use commercially reasonable efforts to limit such measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties shall work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact.  For purposes of this Agreement, “adversely impacts” does not mean an unscheduled increase in End User traffic.

     b. For Services to function as intended, Customer and Resale Customer should cooperate in good faith with DCT to configure and enable Services.  When Customer or Resale Customer elects to send or receive Customer Content using the Services, Customer or Resale Customer is solely responsible for modifying its content identifiers, consistent with guidance that DCT provides, to enable DCT to deliver the selected Customer Content.  This may include changing the alias information in Customer’s or Resale Customer’s DNS record so that hostname addresses of page objects resolve to DCT’s servers.

    c. Given the nature of the Services, Customer is solely responsible for (i) all bandwidth usage or activity occurring on Customer’s DCT account (e.g., leeching or hotlinking/direct linking to Customer Content), (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by DCT or a third Party) related to Customer’s account.  Customer is solely responsible for implementing token authentication and maintaining the security of Customer’s DCT account login credentials and any other information used to gain access to Services.  Customer is solely responsible for backing up all Customer Content and Customer Data. 

2.3. Use of Affiliates/Suppliers/Subcontractors.   DCT may at any time, and without notice, use one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement.

2.4. Service Level Agreement (“SLA”).   

     a. The applicable SLA for a Service shall be set forth in the Service Supplement(s).  To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements.  If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available.  DCT may modify any SLA from time to time, effective upon notice to Customer or posting of the revised SLA on DCT’s website or other Service specific website as applicable.  Continued use of Services 15 days after the date of such notice or posting shall constitute assent to the modified SLA.

     b. SLA Exceptions. For the Services, Customer shall not be eligible to receive a Credit and DCT shall not be held responsible for a SLA failure, if a Services Outage (as defined in the applicable SLA) or other service level failure occurs due, directly or indirectly, to the following (collectively, the “SLA Exceptions”): (i) Force Majeure Events; (ii) DNS issues beyond DCT’s direct control; (iii) scheduled maintenance and emergency maintenance and upgrades; (iv) failure or unavailability of hardware that Customer or Resale Customer provides or controls, including, but not limited to, any Customer or Resale Customer origin server; (v) failure or unavailability of any third Party or public network or system, or software applications or code that Customer provides to DCT, or the interactions of these items; (vi) negligent acts or omissions, willful misconduct or breach of an applicable SO, SOW, Services Supplement or the Agreement by Customer or others engaged or authorized by Customer; or (vii) stream buffering that occurs due to, or associated with, conditions beyond DCT’s network or DCT’s immediate control.

2.5. Order of Precedence.  To the extent there is any conflict between a SO or SOW, a Service Supplement and the terms and conditions of this Agreement, the order of precedence is: (a) the terms and conditions of this Agreement, (b) the SO, (c) the SOW, and (d) the Service Supplement (solely with respect to the Services being provided under that Service Supplement). 

3. CHARGES AND PAYMENT.

1.3. Taxes.   All charges are exclusive of Taxes, which Customer must pay.  If Customer provides DCT with a valid, duly executed tax exemption certificate, DCT shall exempt Customer from Taxes in accordance with the law, effective on the date DCT receives the exemption certificate.  If Customer disputes the application of any Tax, Customer must give DCT written notice of the dispute within one month of the date of the invoice.  Otherwise, such application of Taxes, as between DCT and Customer, shall be deemed correct and binding on Customer.  If Customer is required by law to make any deduction or withholding from any payment due hereunder to DCT, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to DCT shall be increased so that, after any such deduction or withholding for taxes, the net amount received by DCT shall not be less than DCT would have received had no such deduction or withholding been required.

3.2. Payment.

     a. Payment is due within 7 days of invoice date.  All invoices may be provided to Customer electronically.  Customer shall remit payment to DCT at its principal offices, unless DCT provides notice to Customer otherwise.  All charges shall be invoiced and payable in United States dollars, unless otherwise mutually agreed in writing.   

     b. If an invoice is unpaid within 7 days of the invoice date (i.e., the invoice becomes delinquent), DCT may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.  

     c. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within 30 days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation.  The Parties shall work diligently to promptly resolve the dispute and upon resolution, (1) DCT shall promptly credit to Customer any amount found to be owed to Customer or (2) Customer shall promptly pay to DCT all amounts found to be owed to DCT.  If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.

     d. If DCT reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to Customer’s withdrawal of credit card authorization for automatic payment), DCT may, in its sole discretion and effective upon notice to Customer, (i) modify Customer’s payment terms (e.g., by changing from monthly to quarterly invoicing of MRCs, as defined herein) and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment. 

4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.

4.1 DCT grants to Customer the right to access and use the Services during the Term solely for the internal business purposes of the Customer.  Subject only to the foregoing, DCT retains all worldwide rights, title and interest in and to the Services, DCT equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed.  Customer shall not and shall require that Resale Customers do not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, hardware or information.)

4.2. Customer grants to DCT, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content and associated metadata as necessary to provide the Services.  Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Content and Intellectual Property Rights embodied therein or related thereto.  DCT shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content.

5. DATA.

5.1.  The Parties acknowledge and agree that (a) DCT, its Affiliates and agents shall, by virtue of providing Services, come into possession of Customer Data and End User Data, (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) DCT, its Affiliates and agents may use, process and/or transfer Customer Data, End User Data and Customer Content (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by DCT and its Affiliates for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis.  “Customer Data” means information that identifies Customer or a Resale Customer, that is provided to DCT for purposes of account creation, billing, authentication, authorization or configuration, and may include name, contact and billing information, IP address, hostnames and other metadata required for Services configuration (e.g., delivery or ingest) of Customer or a Resale Customer.  “End User Data” means information that identifies an End User and is necessary to implement and use the HTTP or HTTP/S protocol in connection with providing the Services, including IP address.

6. CONFIDENTIALITY.

During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein.  All copies of Confidential Information remain the sole property of Disclosing Party.  Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures.  Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a confidentiality agreement at least as stringent as that provided in this Section 6 or to attorneys or other consultants or contractors who are legally required to maintain the confidentiality of such Confidential Information.  Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to provide Disclosing Party an opportunity to contest such disclosure, (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent, and (3) Receiving Party discloses Confidential Information only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations.  Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure.  DCT shall not be deemed to have received, obtained, discovered, processed, stored, maintained, been given access or required access to Customer’s Confidential Information solely because (x) Customer receives, transmits, obtains or otherwise exchanges such information by using the Services or (y) DCT’s provision of the Services may involve hosting, storage, transport or other similar handling of such information.  Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique, and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate.  If Receiving Party violates or threatens to violate this Section 6, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies. 

7. REPRESENTATIONS AND WARRANTIES.

7.1. Each Party represents and warrants that: (a) it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein; (b) it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third Parties, government authorities or otherwise in order for it to enter into and perform its obligations herein; (c) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (e) it shall comply with all applicable laws, rules and regulations in its performance hereunder.

7.2. Customer represents and warrants that it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Content, Customer Data and End User Data provided to DCT.

7.3. Customer represents and warrants that none of Customer’s known End Users are (a) designated on any U.S. Government or other governmental list of restricted Parties, including the List of Specially Designated Nationals and Blocked Persons administered by the Office of Foreign Asset Controls at the U.S. Department of the Treasury; (b) located in or otherwise ordinarily resident in any country where U.S. or other governmental sanctions or embargo provisions prohibit the provision of the Services; or (c) otherwise prohibited from using, benefiting from or accessing the Services.

8. DISCLAIMER.

DCT PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.

9. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOST CUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHER FORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO DCT SYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY DCT SERVICES, EQUIPMENT, SOFTWARE OR DOCUMENTATION.  DCT SHALL HAVE NO LIABILITY FOR BANDWIDTH THEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), DENIAL OF SERVICE ATTACKS OR OTHER MALICIOUS ACTS BY THIRD PARTIES.  DCT’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO DCT DURING THE 6-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.  

10. INDEMNIFICATION.

10.1 Indemnification.   Customer shall, at its cost, defend, indemnify and hold harmless DCT and its officers, directors, employees, agents and permitted successors and assigns (each a “DCT Indemnitee“) through final judgment or settlement, from and against any third-Party claim, action, suit,  proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim“) brought against a DCT Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Customer, its agents or employees, (b) operation or use of Customer’s or Resale Customer’s products, websites or services, (c) Customer Content, (d) unauthorized use of or access to the Services or DCT equipment by Customer, Resale Customer or End User, (e) DCT’s compliance with Customer or Resale Customer specifications, (f) a combination or modification of the Services or DCT equipment by or on behalf of Customer or Resale Customer by anyone other than DCT or its authorized agents, (g) distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer or Resale Customer information by any non-DCT entity or (h) use of other than the then-current, unaltered release of any DCT-provided software used in the Service.  

10.2. Process.  The DCT Indemnitee shall (a) promptly provide notice to Customer of any Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Customer of its obligations hereunder, except to the extent that Customer is materially prejudiced by such delay), (b) permit Customer to control the defense of any such Claim and (c) provide reasonable assistance at Customer’s reasonable cost.  Subject to the foregoing, in any Claim for which indemnification is sought, Customer may select legal counsel to represent the DCT Indemnitee (such counsel to be reasonably satisfactory to the DCT Indemnitee) and to otherwise control the defense.  If Customer elects to control the defense, the DCT Indemnitee may fully participate in the defense at its own cost.  If Customer, within a reasonable time after receipt of notice of Claim, fails to defend the DCT Indemnitee, the DCT Indemnitee may defend and compromise or settle the Claim at Customer’s cost.  Notwithstanding the foregoing, Customer may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the DCT Indemnitee or diminishes the DCT Indemnitee’s rights, without obtaining the DCT Indemnitee’s express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Customer under this Agreement.  

11. Branding.

     a. DCT shall have the right to refer to Customer as a Customer of DCT Services.  Customer can use DCT/DCT’s name, logo, trade name, service marks, trademarks or printed material in any promotional or advertising material, statement, document, press release or broadcast with DCT’s prior written consent.  

     b. Customer covenants and agrees that it: (i) will not use, register or otherwise assert any ownership interest in any mark that in DCT’s reasonable judgment is confusingly similar to DCT’s trademarks or any portion thereof; (ii) will not use DCT’s trademarks in any manner whatsoever which may, in DCT’s reasonable judgment, jeopardize DCT’s ownership or the significance, distinctiveness, validity or value of DCT’s trademarks; and (iii) will not contest the validity of any of DCT’s trademarks.

     c. Customer agrees that any and all rights, interests and goodwill that might be acquired by its use of DCT’s trademarks shall inure to the sole benefit of DCT.  Customer acknowledges and agrees that, as between itself and DCT, it neither has nor will assert any ownership rights or other interests in DCT’s trademarks other than the limited rights of use expressly provided herein.

   d. Customer agrees to comply with rules set forth from time to time by DCT with respect to the appearance and manner of use of DCT’s trademarks.  

      e. Customer shall comply with all laws and regulations pertaining to the proper use and designation of marks and shall in advertising and printed materials identify DCT’s trademarks with such notice as may be specified by DCT in writing.

     f. Unless otherwise set forth in this Agreement or as otherwise expressly agreed by the Parties in writing, upon the effective date of expiration or any termination of this Agreement, all licenses and rights granted pursuant to this Section 11 shall cease and terminate forthwith and immediately revert to DCT, and Customer shall discontinue all use of DCT’s trademarks and shall destroy or return all materials bearing DCT’s trademarks.  

12. TERM AND TERMINATION.

12.1. Term.   The Agreement shall begin on the Effective Date and shall continue until the earlier of (a) its termination pursuant to the terms of the Agreement, or (b) the expiration or termination of all SOWs and SOs between the Parties (the “Term”).  

12.2. Termination for Cause.

     a. By Customer.  Customer may terminate this Agreement for cause, upon notice to DCT if: (i) a receiver or administrator is appointed for DCT or its property; (ii) DCT makes a general assignment for the benefit of its creditors; (iii) DCT commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) DCT is liquidated or dissolved; (v) DCT ceases to do business or otherwise terminates its business operations or (vi) DCT materially breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from Customer.  For clarity and subject to Section 14.5 (Force Majeure), a Services Outage as defined in the applicable SLA is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Services Outage is set forth in the applicable SLA.

     b. By DCT.  DCT may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced fees or charges within 15 days from the invoice date, in accordance with this Agreement; (vii) Customer breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from DCT.  DCT may terminate, interrupt or suspend Service without prior notice if necessary to (1) prevent or protect against fraud, (2) protect DCT’s customers, personnel, facilities, equipment, network or services, (3) prevent violation of Section 7 (Representations and Warranties) or infringement upon the rights of others or (4) prevent potential material liability. 

12.3. Termination by DCT for Change of Control.   In the event of Customer undergoes a Change of Control, DCT may terminate the Agreement upon 30 days’ notice to Customer’s successor/transferee; provided, that, DCT has determined in its sole discretion that Customer’s successor/transferee is either (a) unable to meet DCT’s standards for creditworthiness, (b) is unable to assume and fulfill Customer’s obligations under the Agreement, (c) otherwise presents an undue financial or credit risk, or (d) is a competitor of DCT.

12.4. Effect of Termination.   

     a. Upon expiration or termination of the Agreement and/or applicable SO, SOW or Service Supplement for any reason, (i) all Customer rights to access or use Services and any other DCT Intellectual Property Rights shall terminate and DCT shall cease providing same, (ii) Customer shall pay to DCT all fees or charges accrued but unpaid, (iii) all liabilities accrued before the date of expiration or termination shall survive and (iv) as directed by each Disclosing Party, each Receiving Party shall return or destroy, and certify in writing to the Disclosing Party such destruction of, all copies of Disclosing Party’s Confidential Information.  

     b.  If Customer terminates the Agreement, a SO, SOW or Service Supplement early without cause or if DCT terminates the Agreement, a SO, SOW or Service Supplement for cause, Customer shall be invoiced and pay to DCT an early termination charge in such amount as set forth in the applicable SO, SOW or Service Supplement.  Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.

 

13. PUBLICITY.

During the Term, except as otherwise set forth herein, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent.  Customer shall not use DCT’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols or otherwise identify or refer to DCT, except as specifically permitted under this Agreement or otherwise with DCT’s express prior consent. Customer grants DCT permission to use Customer’s logo and/or name on the DCT website, in DCT sales presentations, for marketing purposes and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals.  All other uses of Customer’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols shall be subject to Customer’s consent, which shall not be unreasonably withheld.

14. MISCELLANEOUS.

14.1. Non-Solicitation.   During and for one year after the Term, Customer shall not, and shall ensure that its Affiliates do not, directly or indirectly solicit for employment any person employed by DCT to provide Services.  Notwithstanding the foregoing, employment that is initiated by indirect solicitation (such as general newspaper advertisements or general online job postings not targeted at DCT’s employees) shall not be considered a recruitment or solicitation hereunder.

14.2. No Third-Party Beneficiaries.   DCT has been authorized by its Partners as their authorized reseller/service provider of certain Platform Services (Platform Services) and that such Partner(s) shall also act as a beneficiary under the present agreement. There are no third-Party beneficiaries to this Agreement, including any insurance providers or Resale Customers.

14.3. Notices.  Any notices to be given hereunder to any other Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if (a) delivered personally, (b) sent by overnight or second day express delivery service, (c) sent by registered or certified mail, postage prepaid, return receipt requested, or (d) sent by confirmed facsimile, as follows:

If to DCT:

Digital Convergence Technologies  Inc.

320, South Broad Street, 

Ridgewood, NJ 07450, USA

Attention: ______________________

If to Customer:

__________________________

__________________________

__________________________

Attention: __________________

Either Party may change its contact information upon notice to the other Party.  For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.  

14.4. Force Majeure.  Neither Party shall be liable by reason of any failure or delay in the performance of its obligations herein due to acts of God, civil disorders, acts of terrorism, rebellion, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, work stoppages or other labor activity, labor conditions, shortages, fire, flood, storm, earthquake or other natural disaster, explosion, embargoes, strikes, labor disputes, riots, insurrection, war or unrest, military action, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, DNS spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control (each, a “Force Majeure Event“).  Customer’s obligation to pay for Services or products provided by DCT before a Force Majeure Event may be delayed during, but shall not be excused by, the Force Majeure Event.  DCT may limit use of Services due to a Force Majeure Event.  A Party whose performance is affected by a Force Majeure Event shall promptly provide notice with relevant details to the other Party and the obligations of the Party giving such notice shall be suspended to the extent caused by such Force Majeure Event for as long as the Force Majeure Event continues; and the time for performance of the affected obligation shall be extended by the delay caused by the Force Majeure Event.  If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, then it may in its sole discretion immediately terminate the affected Service by giving notice of termination to the other Party; provided, that, in the case of termination by Customer, Customer first provides DCT a reasonable opportunity to replace the affected Service with a comparable Service.  Upon such termination, DCT is entitled to payment of all accrued but unpaid fees or charges incurred through the date of such termination.  The Parties shall otherwise bear their own costs and DCT shall be under no further liability to perform the Services affected by the Force Majeure Event.

14.5. Choice of Law, Forum.   This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey, without regard to conflict of laws principles.  Each Party agrees that any action, suit or other proceeding arising from or based upon this Agreement (each, a “Dispute“) will be brought and maintained only in a Federal or State court of competent jurisdiction located in New Jersey.  Each Party consents to the jurisdiction of such courts and waives any right to object to such jurisdiction.  The prevailing Party in any Dispute shall be entitled to recovery of its reasonable attorneys’ fees and costs.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  

14.6. Relationship of Parties.   The Parties are independent contractors and agree that this Agreement does not establish a partnership, association, joint venture or agency relationship or other co-operative entity between the Parties.

14.7. Waiver, Amendments.   No failure or delay by either Party to exercise or enforce any right herein shall operate as a waiver of any such right.  This Agreement may be amended only by a writing signed by an authorized representative of DCT and an authorized representative of Customer.

14.8. Severability.   If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding shall not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.

14.9. Assignment.   Neither Party may assign this Agreement without the other Party’s express prior consent except that DCT may freely assign its rights and obligations under this Agreement, in whole or in part, (a) to a parent or Affiliate or (b) in connection with a Change of Control.  This Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns.  Any assignment in contravention of this Section 14.10 is null and void.

14.10 Export Controls.   Each Party acknowledges that the Services, Confidential Information, hardware, software, technology, devices or other materials or information obtained from or provided by DCT under this Agreement may be protected under, and subject to, the United States (“US“) Government import and export control laws, including the Export Administration Regulations (15 C.F.R. Parts 730 et seq.), as well as those of a non-US equivalent; accordingly, their use, import, export and re-export, may be restricted, prohibited or necessitate securing licenses which either Customer or DCT, as applicable, shall obtain or provide information for the securing of such licenses, depending on who is designated as the importer and exporter in the transaction.  Each Party agrees not to directly or indirectly export, re-export or cause to be exported or re-exported, any such Confidential Information, Services, hardware, software, technology, device or other such materials or information to any destination or entity prohibited or restricted under US law, unless it shall have first obtained express prior consent of the disclosing Party and obtained all required licenses, approvals or authorizations of the US Government or any other non-US government that may have jurisdiction over the import or export of such Confidential Information, Services, hardware, software, technology, device or other such materials or information.

14.11. Survival.   The Parties’ rights and obligations set forth in Sections 3.2(c) (Invoice Disputes), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 14 (Miscellaneous) shall survive termination or expiration of this Agreement.

14.12. Entire Agreement. This Agreement, the AUP(s), the Service Supplements (including any SLAs), the Exhibit(s), and all SOs, SOWs or Addenda between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.  Except as otherwise expressly stated herein, no amendment to this Agreement is valid unless in writing and signed by both Parties.

14.13. Remedies.   Unless otherwise provided for in this Agreement, to the extent permitted by applicable law, the Parties’ rights and remedies provided herein are cumulative and in addition to any other rights and remedies at law or equity.

14.14. Construction.   Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement.  The terms “include,” “including” or “e.g.” mean “include, without limitation”.  The term “day” means calendar day unless otherwise indicated.  Terms with well-known technical or industry meanings are so construed.  Each Party and its counsel have fully reviewed and contributed to this Agreement.  Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting this Agreement.

Exhibit A

1.Scope

The customer wishes DCT to provide certain services as more thoroughly set out in this SOW and Service Order (SO). DCT has confirmed that DCT is the authorized reseller of Edgecast Inc. (“Edgecast/Verizon”) to provide services more particularly mentioned in this document.

2.Service Description and Requirements.

    a. Service Description. Customer may order one or more of the Services described in the Service Supplements attached to this Service Attachment (ref Exhibit A) (referred to individually or collectively, the “Services” or the “Digital Media Services”). The Digital Media Services will be specified in a Service Order. Any professional services will be specified in a SOW. Provision of the Services to Customer by DCT is subject to the terms and conditions in the Master Terms as well as those specified in this Service Attachment, the Service Order, SOW and/or Service Supplement terms.

     b. Precedence.  To the extent there is any conflict between a Service Order or SOW, this Service Attachment, a Service Supplement and the Master Terms, the order of precedence is: (a) Service Order, (b) SOW; (c) Service Supplement (in respect of the Services being provided under that Service Supplement only); (d) Service Attachment; and (e) Master Terms.

     c. Services.  For Services to function as intended, Customer should cooperate in good faith with DCT to configure and enable Services. When a Customer elects to send or receive Customer Content using the Services, such Customer is solely responsible for modifying its content identifiers, consistent with guidance that DCT provides, to enable DCT to deliver the selected Customer Content. If DCT cannot begin timely delivery of Services for any reason caused by a Customer, DCT nonetheless may, in its sole discretion, invoice Customer for the MRCs as of the Service Start Date

     d. Service Supplements.  The following Service Supplements are attached to this Service Attachment:

    (a)Service Supplement:   Refer Exhibit A

3.Rates and charges.

Customer will pay all charges for the Services as set forth in the relevant Service Order (or “SO”) or Statement of Work (“SOW”). Each Service Order or SOW will form part of an individual Contract between the Parties to such Service Order or SOW, as applicable.

4.Terms and Conditions.

4.1.Customer Content, Responsibilities.

1.Customer Content.  Customer is solely responsible for any Customer Content. Customer warrants that it owns or otherwise has full proprietary rights to the Customer Content, and that it has any and all authorizations and permissions to use the Customer Content in conjunction with the Services and in the manner intended. Customer acknowledges that DCT (a) is a mere intermediary (i.e., passive conduit) for transmission of Customer Content and does not exercise editorial or other control over such materials and (b) shall not be responsible for, and expressly disclaims any liability arising from, any such materials or other data accessible on the Internet or for any action taken on the Internet. Customer acknowledges and agrees that the Services are   primarily enhanced services to access, use, ingest, reproduce, duplicate, format, store, distribute, display, perform and make modification to Customer Content, including encoding, decoding, translating, compressing, decompressing, encrypting, decrypting, repackaging, encapsulating, de-encapsulating, chunking, segmenting, storing, transmitting, distributing, making derivative works of and otherwise managing instances of such Customer Content and associated metadata, and that the processing management of Customer Data is at the direction and discretion of Customer. The Services may not be used to store, process or transmit protected health information. Customer shall use the Services for lawful purposes only, and shall not provide to DCT any Customer Content that may compromise the Services or DCT Facilities, is inappropriate and/or violates or is inconsistent with the AUP. The applicable AUP for the Services is available at the following URL: www.dctinc.com/terms/aup/ or other URL designated by DCT. If DCT determines, in its sole discretion, that Customer Content or any use of Services violates the AUP or otherwise adversely impacts the Services, DCT reserves the right to take remedial measures including blocking or disabling access to protect DCT, its customers, facilities, network and services and third parties. DCT shall use commercially reasonable efforts to limit such measures to the extent necessary to resolve the adverse impact without undue interruption of the Services. The Parties shall work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact. For purposes of this Service Attachment, “adversely impacts” does not mean an unscheduled increase in End User traffic.

2.Responsibilities.  Given the nature of the Services, Customer is solely responsible for (i) all bandwidth abuse, theft or other unauthorized usage or activity occurring on Customer’s DCT account (e.g., leeching or hot linking/direct linking to Customer Content), (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by DCT or a third party) related to Customer’s account and (iv) regularly monitoring all usage of bandwidth and Services and other activity on Customer’s account. Customer is solely responsible for implementing authentication measures and maintaining the security of Customer’s DCT account login information, passwords and any other information used to gain access to Services. Customer is solely responsible for backing up all Customer Content and Customer Data.

3.Technical Cooperation. For the Services to function as intended, Customer must cooperate in good faith with DCT to configure and enable the Services. When Customer elects to send or receive Customer Content using the Services, Customer is solely responsible for modifying its content identifiers, consistent with instruction that DCT provides, to enable DCT to deliver the selected Customer Content. This may include changing the alias information in Customer’s DNS record so that hostname addresses of page objects resolve to DCT’s servers.

4.2. DATA.

The Parties acknowledge and agree that (a) DCT, its Affiliates, contractors, and agents, by virtue of providing Services, may come into possession of Customer Data or Customer Data and (b) any processing of such data occurs exclusively at the direction and discretion of Customer.  Customer irrevocably consents to, and warrants that it will obtain any necessary consents from any Customer(s) and require Customer(s) to warrant that they have obtained necessary consents from End Users, for, the use, processing, and transfer of Customer Data, Customer Data, and Customer Content (including transfers to entities in countries that do not provide statutory protections for personal data) by DCT, its Affiliates, contractors, and agents (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data and/or Customer Data into databases controlled by DCT, its Affiliates or subcontractors, for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer and/or Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer and/or Customer analysis and reporting, marketing and Customer and/or Customer use analysis. 

4.3. CONFIDENTIALITY.

During the Term, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein.  All copies of Confidential Information remain the sole property of Disclosing Party.  During the Term and for 6 (six) months after termination of this Agreement, Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures.  Receiving Party may not disclose Confidential Information to anyone other than its employees, consultants, Affiliates, and contractors who have a need to know in connection herewith and who have executed a similarly stringent confidentiality agreement or are subject to a professional duty of confidentiality.  Customer understands and agrees that any reports, materials and other documentation provided to Customer are provided solely for Customer’s own use and Customer agrees not to re-transmit any reports, material or other documentation to any third party, including Clients.  Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to permit Disclosing Party an opportunity to contest such disclosure (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent and (3) Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations.  Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure.  DCT shall not be deemed to have received, obtained, discovered, processed, stored, maintained, been given access or required access to Customer’s Confidential Information solely because (x) Customer receives, transmits, obtains or otherwise exchanges such information by using the Services or (y) DCT’s provision of the Services may involve hosting, storage, transport or other similar handling of such information.  Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate.  If Receiving Party violates or threatens to violate this Section 7, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies. 

4.4.INTELLECTUAL PROPERTY, GRANT OF RIGHTS.

1.DCT retains all worldwide rights, title and interest in and to the Service(s), DCT equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed.  Customer shall not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, hardware or information.)

2.Customer grants to DCT, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content as necessary to provide the Services.  Subject only to the foregoing, Customer or Customer, as applicable, retains all rights, title and interest in and to Customer Content and Intellectual Property Rights embodied therein or related thereto.  DCT shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content.

3.Affiliates/Suppliers/Subcontractors.   DCT may at any time, and without notice, use the services of one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement

4.5.Grant of Rights.

1.DCT Rights.  DCT grant the Customer the non-exclusive right to access and use the Services solely for the purposes of the Agreement. As between the Parties and subject only to the rights of use expressly granted by DCT herein, DCT retains all worldwide rights, title and interest in and to the Platform/Services, Services Equipment, DCT Facilities and methodologies, software, patents, copyrights and any other Intellectual Property rights embodied therein provided in connection with the Platform/Services, DCT Confidential Information, all revisions thereto, derivatives thereof and all Intellectual Property Rights therein, whenever developed. Customer shall not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any Software or Service Equipment provided by DCT) or DCT Confidential Information. Customer shall provide reasonable assistance to DCT, at DCT’s cost, to secure protection of DCT’s Intellectual Property Rights, including assistance in preparing and filing applications, assignments and other instruments to perfect title.

2.Customer Rights. Customer grants to DCT, and its agents, suppliers and subcontractors, the non-exclusive right to access and use, ingest, reproduce, duplicate, store, distribute and display Customer Content in accordance with Customer’s express requirements. Again, in accordance with Customer’s express requirements, DCT may take steps including encoding, decoding, translating, compressing, decompressing, encrypting, decrypting, repackaging, encapsulating, de-encapsulating, chunking, segmenting, storing, transmitting, distributing, making derivative works of and otherwise managing instances of such Customer Content and associated metadata, solely for the purposes of this Agreement. For the avoidance of doubt, the steps taken by DCT will be strictly limited to those necessary to meet Customer’s requirements. As between the Parties and subject only to the licenses expressly granted by Customer herein, Customer retains all rights, title and interest in and to Customer Content, Customer Confidential Information and other Pre-existing Customer Intellectual Property Rights. DCT shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content or Customer Confidential Information.

4.6. Indemnification.

1.Additional Indemnities. In addition to any other indemnities set forth in the Master Terms, Customer shall, at its cost, defend, indemnify and hold harmless DCT and its officers, directors, employees, agents and permitted successors and assigns (each a “DCT Indemnitee”) through final judgment or settlement, from and against any claim, action, suit,  proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) that is made or brought by or on behalf of (a) a Customer against a DCT Indemnitee in connection with Services resold by Customer hereunder, (b) a third party other than a Customer arising out of or based upon, (i) products, websites, services, or equipment owned by or on behalf of Customer or Customer (including any combination thereof with the Services), (ii) Customer Content, (iii) any failure by Customer or a Customer to comply with the AUP, (iv) use of other than the then-current,  unaltered release of any DCT-provided software used in the Service, and (c) Customer’s breach of this Agreement (v) Customer’s breach of this Agreement or (vi) Customer’s use including without limitation, any Claims arising as a result of any Customer’s violation of applicable laws, regulations or the terms of this Agreement or Customer’s obligation or failure to flow-down applicable terms and conditions to Clients.

2.DCT shall indemnify and hold harmless the Customer and its officers, directors, employees, agents and permitted successors and assigns (each a “Customer Indemnitee”), at all times, from and against any loss, injury or damage caused to the Customer in consequence of any of the breach of warranties, representations, that may be brought against the Customer. The indemnification shall include reasonable legal costs, or expenses paid by Customer on advice of its legal counsel. The Indemnified Party is under an obligation to inform the Indemnifying Party as early as possible regrading such claim and assist the Indemnifying Party in defending such claim. No settlement shall be agreed to without consent of the Indemnifying Party. 

3.Notice, Co-operation, Control, and Consent to Settlement. The sub-clauses in the Master Terms entitled “Excuse from Obligations” and “Prior Consent Required” apply to this clause entitled “Indemnification”.

4.7. LIMITATION OF LIABILITY.

IN ADDITION TO ANY LIMITATIONS OF LIABILITY SET FORTH IN THE MASTER TERMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT, LOST CUSTOMER(S), BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.  NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM TERMINATION OF THIS AGREEMENT, OTHER THAN THE EARLY TERMINATION CHARGE AS APPLICABLE.  DCT SHALL HAVE NO LIABILITY FOR BANDWIDTH THEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), DENIAL OF SERVICE ATTACKS OR OTHER MALICIOUS ACTS BY THIRD PARTIES.  DCT’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO DCT FOR THE RESALE SERVICES GIVING RISE TO SUCH CLAIM AND PROVIDED TO THE APPLICABLE CUSTOMER(S) DURING THE 6-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.  EACH OF THE PARTIES ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICES PURSUANT TO THE APPLICABLE SERVICE ORDER(S) REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT DCT WOULD NOT ENTER INTO THIS AGREEMENT OR SUCH SERVICE ORDER(S) WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  

In no event will DCT be liable to Customer or other third party for the Services if the Services (a) have been altered or modified by anyone other than DCT, (b) are used in combination with any other products and/or services not provided by DCT or (c) are used in an unintended manner or for an unintended purpose.  

4.8. DISCLAIMER.

DCT AND ITS APPLICABLE AFFILIATES, LICENSORS AND SUPPLIERS PROVIDE THE SERVICES “AS IS” AND DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT SERVICES SHALL BE ERROR-FREE OR COMPLETELY SECURE.

4. 9.REPRESENTATIONS AND WARRANTIES.

Each party represents and warrants that: (a) it possesses the full right, power and authority, including under the laws which apply in the Territory, to enter into and fully perform this Agreement and grant the rights granted herein; (b) it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third parties, government authorities or otherwise in order for it to enter into and perform its obligations herein; (c) it is not bound, nor during the term of this Agreement will be bound, by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; (e) it shall comply with and shall ensure that its Clients comply with all applicable laws, rules and regulations in its performance hereunder, including any regulatory requirements of countries where Customer is selling Services,   and (f) it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Content, Customer Data, and Customer Data provided to other party and to fulfill its obligations under this Agreement.

5. Service Level Agreement.

  1. SLA Application. The applicable SLA for the Services shall be set forth in the Service Supplements(s). To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements. If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available.
  2. SLA Exceptions. For the Services, Customer shall not be eligible to receive a Credit and DCT shall not be held responsible for a SLA failure, if a Services Outage (as defined in the applicable SLA) or other service level failure occurs, directly or indirectly, due to an SLA Exception.

6. SLA Definitions.

In addition to the definitions in the Master Terms, the following Service-specific definitions apply:

  • Definitions
  • Definition
  • CDN
  • Content Delivery Network
  • Claim
  • Means any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel).
  • Credit
  • Means a credit under in applicable SLA as defined in that SLA
  • Customer Content
  • Means Content, software, data, video, information and equipment of Customer and/or Customer’s customers, including third-party content, software, data and equipment, provided or made available to DCT for storage, delivery or otherwise in connection with the Services.
  • End User
  • Means a subscriber, member or other visitor of an online site or service owned and/or operated by Customer who uses, benefits from or accesses the Services.
  • ICP
  • Means Internet Content Provider
  • Intellectual Property Rights
  • Means all rights in, to, or arising out of (1) any U.S., international or foreign patent or any application thereof and any and all reissues, divisions, continuations, renewals, extensions, continuations-in-part, utility models, and supplementary protection certificates thereof; (2) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information or materials, know-how, technology and technical data; (3) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; (4) trademarks, service marks, trade names, domain names, logos, trade dress, and all goodwill associated therewith; and (5) any other proprietary rights of a similar nature anywhere in the world now or hereafter recognized.
  • SLA Exceptions
  • Means (a) force majeure events, including acts of God, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, domain name system (“DNS”) spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control; (b) DNS issues beyond DCT’s direct control;  (c) scheduled maintenance and emergency maintenance and upgrades; (d) failure or unavailability of hardware that Customer or Customer provides or controls, including, but not limited to, any Customer or Customer origin server; (e) failure or unavailability of any third party or public network or system, or software applications or code that Customer provides to DCT, or the interactions of these items; (f) negligent acts or omissions, willful misconduct, or breach of the Agreement by Customer or others engaged or authorized by Customer; (g) stream buffering that occurs due to, or associated with conditions beyond DCT Facilities or DCT’s immediate control; or (h) failure of the DCT control center, DCT reporting system or any DCT measurement system.

Exhibit - A

Service Supplements

List of Service Supplements

Description

Delivery Services

Digital media management, CDN, network capacity and storage services

Real Time Log Delivery

Real Time Log Delivery (“RTLD Service”) is a service that processes and sends Raw Logs for delivery to a Customer’s Destination Endpoint in Real Time.

Storage Services

Storage services allow Customers access to a Locally Redundant, Hot Access tier, Blob Storage service (collectively, “Storage Services”)

 

SERVICE SUPPLEMENT

DELIVERY SERVICES

  1. Delivery Services – Description.  Verizon shall provide the Verizon digital media management, content delivery network (“CDN“), network capacity and storage services (collectively, “Delivery Services“).
  2. Fees and Charges.   Customer shall pay to DCT all fees or charges incurred on Customer’s account in full, as set forth in this Agreement and any SO or SOW, regardless of whether or how much Customer uses the Delivery Services.   DCT makes available to Customer, through the DCT reporting tools, data regarding Customer’s billable usage of bandwidth or Services on which the fees or charges are assessed; but DCT is not responsible for notifying Customer of usage or activity patterns occurring on Customer’s account.
  3. SLA.  The Delivery Services SLA is attached as Attachment 1 and incorporated herein by this reference.
  4. Invoicing.    
  •      4.1.Transaction Volumes, Logs, Sub-Accounts. 
  •             a.For transaction invoicing purposes, delivered objects smaller than 1 kilobyte (“kB“) in size shall be rounded up to 1 kB.  Traffic measurements shall include transferred FTP and rsync data.  
  •           b.If Customer has enabled logging functionality, invoicing will be done as per the rate card mentioned in the SO.
  •     4.2. for Storage Services. For storage Services, each month Customer is responsible for paying by the per-GB storage Services rates set forth in the applicable SO or SOW.
  • 5.Transact Delivery Network. Verizon provides a dedicated CDN focused on commerce (“Transact Delivery Network”) that has been certified by a qualified security assessor for the Payment Card Industry Data Security Standard (“PCI DSS”).  Verizon shall undertake an annual audit for purposes of ongoing PCI DSS Level-1 recertification.  Upon request by Customer, Verizon shall make available the most recent signed Certificate of Compliance issued to Verizon.  Any and all usage of the Transact Delivery Network shall be in compliance with PCI DSS.  Customer shall not cache or store any Cardholder Data (as defined in the PCI DSS) on the Transact Delivery Network.  Network scanning or penetration or similar testing may be performed on the Transact Delivery Network environment, subject to additional charges, and only with express prior approval from Verizon through DCT.

ATTACHMENT 1

TO

SERVICE SUPPLEMENT

This Service Level Agreement (“Delivery Services SLA”) shall only apply to Delivery Services.

1.Definitions.

  1.1.“Base Charge” consists solely of the committed base monthly charge paid by Customer for the Delivery Services and excludes all other fees or charges that might be paid by Customer including, but not limited to, setup charges, charges for additional services, incremental bandwidth usage, professional services and any other type of optional additional services.

  1.2.“Customer Content”, for purposes of this Delivery Services SLA, means objects delivered from a Delivery Server.

   1.3. “Delivery Server” means Verizon-owned and operated servers for delivering Customer Content located on the CDN at Verizon’s Points of Presence (each, a “POP”).

  1.4. “Services Outage” means an instance in which a Service covered by the 100% uptime guarantee is completely unavailable for more than 15 consecutive minutes.

  1.5.“Origin Server” means either Verizon’s or Customer’s Internet web server, where Customer Content is stored for retrieval by Delivery Servers.

2.Guarantee of 100% Uptime.   Subject to the SLA Exceptions set forth in the Agreement, Verizon provides an uptime guarantee of 100% to Customer covering (a) uptime of the Verizon CDN and (b) Customer Content delivery uptime and availability.  Subject to the terms and conditions of this Delivery Services SLA, Verizon shall issue to Customer a credit for a Services Outage in an amount equal to one day’s worth of the Base Charge paid by Customer (“Credit”), multiplied by each 24-hour period in which Customer experiences a Services Outage during a particular month.  Periodically (i.e., every 15 minutes or more often), Verizon shall measure Customer Content delivery availability by requesting representative Customer Content from Delivery Servers at selected POPs, using software and hardware components capable of measuring traffic and responses at the selected POPs.

3.SLA Exceptions.  Customer shall not be eligible to receive a Credit and Verizon/DCT shall not be held responsible for a service level failure that occurs due, directly or indirectly, to the following (collectively, the “SLA Exceptions”): (i) Force Majeure Events; (ii) DNS issues beyond Verizon’s direct control; (iii) scheduled maintenance and emergency maintenance and upgrades; (iv) failure or unavailability of hardware that Customer provides or controls, including, but not limited to, any Customer origin server; (v) failure or unavailability of any third party or public network or system, or software applications or code that Customer provides to Verizon, or the interactions of these items; (vi) negligent acts or omissions, willful misconduct or breach of an applicable SO, SOW, Services Supplement or the Agreement by Customer or others engaged or authorized by Customer subject to proved by DCT; or (vii) stream buffering that occurs due to, or associated with, conditions beyond Verizon’s network or Verizon’s immediate control.

4.Credit.   All Credit is calculated on the basis of a 30-day month.  Notwithstanding anything in this Delivery Services SLA to the contrary, total Credits issued to Customer in connection with any calendar month shall not exceed the Base Charge paid by Customer for such month.  To be eligible for Credit, Customer must follow DCT’s published instructions for use of the Services; improper use shall result in ineligibility.  Credit shall not be issued if Customer is in breach of the Agreement, including an applicable SO or SOW, including breach for non-payment.  Credit will only be issued if Customer has paid in full for Services covering the time period within which the Credit is requested.  If Customer is eligible to receive more than one Credit attributable to the same Services Outage, Customer shall only receive one Credit equal to the highest of all Credits then available.  To receive Credit under this Delivery Services SLA, Customer must submit a request in writing via email to sla_request@dctinc.comThe request must include Customer’s (a) company name, (b) contact name, (c) email address and (d) phone number, as well as (e) the date of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request.  DCT must receive the Credit request within 30 days after the suspected Services Outage has occurred.  The suspected Services Outage must be capable of confirmation by DCT’s measurement tools.  Any issued Credit shall be applied to Customer’s invoice within immediately next invoicing cycles.  Credits are exclusive of any Taxes charged to Customer or collected by Verizon/DCT.  As an exception, DCT shall provide credit for outages beyond 2 (two) hours under section ii, iii and vii of Section 3 SLA Exceptions, which will be equivalent to an amount equal to one day’s worth of the Base Charge paid by Customer for the Delivery Services for each instance. For clarity purpose, this exception applicable for Credit only and doesn’t impact the definition of Section 3 SLA Exceptions.

CUSTOMER SERVICE SUPPLEMENT

REAL TIME LOG DELIVERY SERVICE

1.Real Time Log Delivery – Service Description:  Real Time Log Delivery (“RTLD Service”) is a service that processes and sends Raw Logs for delivery to a Customer’s Destination Endpoint in Real Time. 

2. Definitions.  The following terms shall have the meanings as set forth herein. Any terms used in this Customer Service Supplement for the RTLD Service and not defined herein shall have the meaning set forth in the Agreement.

  2.1. “Destination Endpoint” means an endpoint provided by the Customer to which Raw Logs will be sent

  2.2. “Real Time” means the creation and delivery of raw logs as they are generated, which may include latency related to the processing of such logs

  2.3. “Raw Logs” means the records of requests that are served by the CDN 

3.Customer Obligations: Customer is responsible for properly enabling and configuring the RTLD Service for its Customers via Customer’s account.  DCT shall not be responsible for provisioning, configuration, and security of any Customer’s Destination Endpoint.  Use of the RTLD Service is limited to internal use for general analytics, business intelligence, and diagnostic purposes. The RTLD Service cannot be used as a basis for calculating usage charges. 

4. Disclaimers: For the RTLD Service, Verizon shall not be responsible for delivery of log messages beyond Verizon’s network nor for failure or unavailability of any third party or public network or system used for delivery of the Raw Logs to Customer’s Destination Endpoint. 

5. Customer Termination: Customer may terminate the SOW as per the provisions mentioned in the SO.

ADDITIONAL TERMS APPLICABLE TO STORAGE SERVICES

1.Storage Services – Description. In providing the Storage Services, Verizon may utilize third party providers (“Suppliers”). Storage services allow Customers access to a Locally Redundant, Hot Access tier, Blob Storage service (collectively, “Storage Services”):

Definitions:

“Blob Storage Account”: is a storage account specialized for storing data as blobs (binary large objects).

“Hot Access Tier”: is an attribute of a blob or account indicating it is frequently accessed.

“Locally Redundant Storage (LRS) Account”: is a storage account for which data is replicated synchronously only within a Primary Region.

“Primary Region”: is a geographical region in which data within a storage account is located, as selected by Customer when creating the storage account. Customers may execute write requests only against data stored within the Primary Region associated with storage accounts.

2.Modifications, New Releases and Third-Party Products: Customer mandates that the Suppliers of the Storage Services shall not make modifications or issue any new releases of the Storage Services over which DCT has no control without prior approval of the Customers. If any functionality or features are required to be changed or need to make unavailable and/or additional license terms or fees or functionality are required to be implemented, then such changes are required after prior mutual understanding between Customer and Supplier/DCT. 

3.Customer obligations. Customer is responsible for managing the Storage Services unless otherwise agreed in writing. By way of example, and not limitation, Customer is responsible for (1) maintaining the confidentiality of any authentication credentials associated with Customer’s use of the Storage Services, (2) notifying and obtaining the consent of its users that data may be processed for the purpose of providing the Services, including disclosing it to law enforcement or other governmental agencies, (3) responding to requests by a third party regarding use of the Storage Services, such as a take-down request under applicable law, and (4) complying with all technical limitations. Storage Services may only be used in conjunction with Verizon’s CDN service and Customer must be under an existing order for CDN services.  

4.Customer Content. Solely in connection with Customer’s use of the Storage Services, Customer acknowledges that the third-party service provider will store Customer Content and maintain that Customer Content on its storage services. All Customer Content and rights therein shall remain the property of Customer. Customer will secure and maintain all rights, licenses, and approvals in and for Customer Content necessary for DCT to provide the Storage Services without violating the rights of any third party. Neither DCT nor its Suppliers assume any obligations with respect to Customer Content or to Customer’s use of the Storage Services. Customer shall have sole responsibility for maintaining Customer Content, including maintaining original files and backup files of Customer Content, and DCT shall not be liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Content. 

5.Intellectual Property. Subject to the terms of this Service Supplement and the Agreement, Verizon grants to Customer the right to access and use the Storage Services during the term of the applicable SO solely for the purposes permitted by the Agreement.  Subject only to the foregoing, Verizon and/or its Suppliers retain all worldwide rights, title and interest in and to the Storage Services, equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed.  

6.Territory.  The Storage Services are made available for Customers in the US region. 

Availability of the Storage Services, some functionality, and language versions varies by region. Customer shall fully comply with all export, import and sanctions laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and shall not directly or indirectly export, re-export, transfer, or release any commodities, software or technology or data for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. Customer further assumes responsibility for and bears all expenses relating to Customer’s compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.

7.Invoicing.    DCT shall submit invoices (electronically or otherwise) to Customer for amounts due under a SO.      For storage Services, each month Customer is responsible for paying the greater of (1) Customer’s MRC for Storage Services or (2) the highest hourly per-GB usage level for Storage Services during that month (i.e., high-water mark) multiplied by the per-GB Storage Services rates set forth in the applicable SO or SOW. Customer shall pay to DCT all fees or charges incurred on Customer’s account in full, as set forth in this Agreement and any SO, without set-off, withholding or deduction by Customer. All fees or charges shall be invoiced and payable in INR, unless otherwise mutually agreed in writing. 

8.Suspension.   In addition to any other suspension rights set forth in the Agreement, DCT  may suspend Customer’s Storage Services (in whole or in part) with prior written notice (1) if Customer or its users use the Storage Services in a way that DCT proves beyond reasonable doubt that it is fraudulent or illegal, or in violation of the rights of a third party, poses a threat to the security, functionality or integrity of the Storage Services, of our network or services, or of other customers, (2) in force majeure event(s), (3) to protect against or prevent unauthorized access to, misuse of (including distribution of spam, spoofing, or malware), or tampering with the Storage Services or our network or services, (4) as necessary to comply with a statutory requirement of Government of USA, or (5) for Customer’s material breach of the Agreement.

9.Termination. Customer can terminate this SOW as per the provisions mentioned in the SO.

10.Service Level Agreement. The Service Level Agreement for the Storage Services is set forth in Attachment 1.

11.Service Restrictions.  Customer shall not (and shall not allow any third party to): (a) reverse engineer, disassemble, decompile or otherwise duplicate, or attempt to reverse engineer, disassemble, decompile or otherwise duplicate, the Storage Services or any component thereof; (b) circumvent or attempt to circumvent any technical limitations in the Storage Services or any of the attendant technology; (c) use the Storage Services (or any component thereof, including any information or materials provided in connection with the Storage Services) to develop any technology, products or services that are identical to or similar to the Storage Services; (d) use the Storage Services in violation of the rights of others, including other customers of Verizon or its Suppliers, (e) use the Storage Services for any high risk use (where failure or fault of the Storage Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage, (f) place or store any Customer Content on the Storage Services or use the Storage Services in a manner that may compromise the security or integrity of the Storage Services, that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive fraudulent, invasive of another’s privacy or other rights, (g) access or otherwise use the Storage Services or any component thereof in violation of the Agreement; or (g) transfer, assign, distribute, license, sublicense, rent, lease, barter, resell, or commercially exploit the Storage Services in any manner not expressly permitted by the Agreement.

12.Disclaimer. The Storage Services are provided “AS IS” with all faults, and neither Verizon nor its Suppliers make any and disclaim all representations or warranties of any kind, express or implied, statutory or otherwise in law or from a course of dealing or usage of trade with respect to the Storage Services to the fullest extent permitted by law, including any representation or warranty that the Storage Services will be uninterrupted, fully secure, or error free. Customer acknowledges and agrees that its sole and exclusive remedy with respect to the Storage Services are the service level credits set forth herein.

13.Confidential Information.  Both parties agree to take appropriate measures to safeguard and protect the Confidential Information of the other party from unauthorized use and disclosure, and shall not use such Confidential Information for any purpose other than to exercise its rights and obligations associated with the terms of this SOW, and shall not disclose the Confidential Information to any other party other than to its agents, employees and contractors whom are bound by a duty of confidentiality no less protective than these terms. Both parties agree to return or irrevocably destroy all such Confidential Information upon the expiration or termination of the Term.  Both parties agree to take such precautions that are no less protective than to protect its own information of similar import to protect such Confidential Information from unauthorized use and disclosure, but in no event shall such precautions be less than reasonable precautions to protect such Confidential Information from unauthorized use and disclosure.  Both parties agree that money damages may not be an adequate remedy for a breach of this paragraph, and that aggrieved party may be entitled to equitable relief, including an injunction and specific performance, in the event of any actual or threatened breach of this paragraph, in addition to any other rights or remedies that aggrieved party may have, whether at law or in equity.

14.Support. 

Incident Management: 

VDMS Customers may submit Incidents for services requests or Break/Fix resolution of service via 1) the ServiceNow portal or 2) by sending an email to support@verizondigitalmedia.com, which will create a ServiceNow ticket.  

The VDMS NOC will be responsible for basic triage and troubleshooting with a primary focus on being able to detect and deflect issues that may lie with the customer infrastructure.

Categorization of Tickets:

Incidents are categorized as set forth below. 

Impact Level

Definition

1 – Critical

An issue that has a significant business impact or an immediate severe impact to a core business process or an operation that is mission critical to the business.  The event and/or problem may render the Service non-functional.  The customer must participate on a customer bridge while the issue is being resolved.

2 – High

An event that severely limits the operation of the service and affects the customer’s core business in one or more locations and must be resolved expeditiously.

3 – Medium

An event that affects the operation of a service but there is little to no disruption to the service. A known workaround is available for the issue. Does not require immediate attention.

4 – Low

Service request and/or inquiry. Possible impact to service. Does not require immediate attention.

 

Customer Feedback Times:

Priority

Response Time Frame

PRIORITY: 1 CRITICAL

Real time updates via phone call 

PRIORITY: 2 HIGH

30 Minutes – 1 Hour

PRIORITY:3 MEDIUM

Once every 4 hours

PRIORITY: 4 STANDARD

Once daily

15.Suppliers as Third-Party Beneficiary. DCT’s provider of the Storage Services shall be deemed a third-party beneficiary for the purposes of pursuing any rights and remedies directly against Customer.

ATTACHMENT 1 TO SERVICE SUPPLEMENT

The Service Level Agreement (“Storage Services SLA”) shall apply only to the Storage Services.

1.Definitions.

“Applicable Monthly Period” means, for a calendar month in which a Service Credit is owed, the number of days that Customer subscribes to the Storage Service.

“Applicable Monthly Service Fees” means the total fees actually paid by Customer for the Storage Service that are applied to the month in which a Service Credit is owed.

“Service Credit” is the percentage of the Applicable Monthly Service Fees credited to the Customer following Verizon’s claim approval.

“Average Error Rate” for a billing month is the sum of Error Rates for each hour in the billing month divided by the total number of hours in the billing month.

“Excluded Transactions” are storage transactions that do not count toward either Total Storage Transactions or Failed Storage Transactions. Excluded Transactions include pre-authentication failures; authentication failures; attempted transactions for storage accounts over their prescribed quotas; copying blobs or files between storage accounts.

“Error Rate” is the total number of Failed Storage Transactions divided by the Total Storage Transactions during a set time interval (currently set at one hour). If the Total Storage Transactions in a given one-hour interval is zero, the error rate for that interval is 0%.

“Total Storage Transactions” is the set of all storage transactions, other than Excluded Transactions, attempted within a one-hour interval across all storage accounts in the Storage Service in a given subscription.

“Monthly Uptime Percentage” is Monthly Uptime Percentage is calculated using the following formula:

100% – Average Error Rate

“Failed Storage Transactions” is the set of all storage transactions within Total Storage Transactions that are not completed within the Maximum Processing Time associated with their respective transaction type, as specified in the table below. Maximum Processing Time includes only the time spent processing a transaction request within the Storage Service and does not include any time spent transferring the request to or from the Storage Service. Failed Storage Transactions do not include: Transaction requests that are throttled by the Storage Service due to a failure to obey appropriate back-off principles. Transaction requests having timeouts set lower than the respective Maximum Processing Times specified above

Request Types

Maximum Processing Time

PutBlob and GetBlob

Two (2) seconds multiplied by the number of MBs transferred in the course of processing the request

Copy Blob

Ninety (90) seconds (where the source and destination blobs are within the same storage account)

PutBlockList

GetBlockList

Sixty (60) seconds

All other Blob Operations

Two (2) seconds

2.Service Credits.

Monthly Uptime Percentage

Service Credit

Less than 99.9%

10% of Storage Services MRC 

Less than 99%

25% of Storage Services MRC 

Notwithstanding anything in this Storage Services SLA to the contrary, total Service Credits issued to Customer in connection with any Applicable Monthly Period shall not exceed the Applicable Monthly Service Fees paid by Customer for such month.  To be eligible for Credit, Customer’s use of the Storage Services must be in compliance with the Agreement and all use instructions; noncompliance shall result in ineligibility. Credit shall only be issued if Customer’s account is paid in full, Customer has paid in full for the Storage Services covering the time period within which the Credit is requested and the Credit is confirmed and issued to DCT by the third party provider.  If Customer is eligible to receive more than one Credit attributable to the same Services Outage, Customer shall only receive one Credit equal to the highest of all Credits then available. As an exception, DCT shall provide credit for outages beyond 2 (two) hours under section ii, iii and vii of Section 3 SLA Exceptions, which will be equivalent to an amount equal to one day’s worth of the Base Charge paid by Customer for the Storage Services. For clarity purpose, this exception applicable for Credit only and doesn’t impact the definition of Section 3 SLA Exceptions.

3.Claims.

To receive Credit under this Storage Services SLA, Customer must submit a request in writing via email to sla_request@dctinc.com. The request must include Customer’s (a) company name, (b) contact name, (c) email address and (d) phone number, as well as (e) the date and time of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request.  DCT must receive the Credit request within 30 days after the suspected Services Outage has occurred.  The suspected Services Outage must be capable of confirmation by the third-party provider’s measurement tools.  Any issued Credit shall be applied to Customer’s invoice within  immediately next invoicing cycles.  Credits are exclusive of any taxes charged to Customer or collected by DCT.

4.SLA Exceptions.

Customer shall not be eligible to receive a Credit and DCT/Verizon shall not be held responsible for a service level failure that occurs due, directly or indirectly, to the following (collectively, the “SLA Exceptions”): (i) Force Majeure Events; (ii) issues beyond Verizon’s or its third party provider’s direct control; (iii) scheduled maintenance and emergency maintenance and upgrades max. upto two hour for two times in a month; (iv) failure or unavailability of hardware that Customer provides or controls, including, but not limited to, any Customer server; (v) failure or unavailability of any third party or public network or system, or software applications or code that Customer provides to DCT/Verizon or utilizes with the Storage Services, or the interactions of these items; (vi) negligent acts or omissions, willful misconduct or breach of an applicable SO, SOW, Services Supplement or the Agreement by Customer or others engaged or authorized by Customer subject to proved by DCT; or (vii) stream buffering that occurs due to, or associated with, conditions beyond Verizon’s network or Verizon’s immediate control. 

5.Miscellaneous.

DCT can’t modify any term of SLA without prior approval of the Customer.