A Dimension Beyond, Inc.
TERMS OF SERVICE FOR HOSTING SERVICES
- ATTENTION! THE FOLLOWING TERMS AND CONDITIONS ARE LEGALLY BINDING FOR THE CUSTOMER UPON SUBSCRIPTION TO A Dimension Beyond, Inc. SERVICES. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE ORDERING SERVICES.
- Terms of Service. Customer acknowledges and agrees to the following terms of service, which governs Customer’s access and use of the Services (the ‘Agreement’). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 9 (Definitions) below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement.
2.1. Customer Must Have Internet Access. DSL, cable or another high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, “browser” and „viewer“ software that support protocols used by A Dimension Beyond, Inc., including Secure Socket Layer (SSL) protocol, Second Life Client protocols or other protocols accepted by A Dimension Beyond, Inc., and to follow logon procedures for services that support such protocols. A Dimension Beyond, Inc. is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by A Dimension Beyond, Inc.. A Dimension Beyond, Inc. assumes no responsibility for the reliability or performance of any connections as described in this Section.
2.2. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2.3. Users: Passwords, Access, And Notification. Customer shall authorize access to and assign unique passwords and user names to the number of Users registered by Customer. User logins are for designated Users and cannot be shared or used by more than one User. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. A Dimension Beyond, Inc. will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify A Dimension Beyond, Inc. of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Services.
2.4. Customer’s Lawful Conduct. The Service allows Customer to send Electronic Communications directly to A Dimension Beyond, Inc. and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by A Dimension Beyond, Inc.. Customer shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by A Dimension Beyond, Inc.. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer’s contractors’, agents’ or Affiliates’ acts, omissions and noncompliance with this Agreement.
2.5. Third Party Web Sites, Products and Services. A Dimension Beyond, Inc. may offer certain Third Party Applications for sale. Any purchase of such Third Party Applications by Customer shall be subject to the terms specified for that Service. In addition, A Dimension Beyond, Inc. (through the Service) or certain third party providers may offer links to other websites, resources, Third Party Applications or services, including implementation, customization and other consulting services related to customers’ use of the Service. A Dimension Beyond, Inc. does not warrant any such Third Party Applications or services except as set forth by A Dimension Beyond, Inc., whether or not such Third Party Applications are designated by A Dimension Beyond, Inc. as “certified,” “approved”, ‘recommended’ or otherwise, or the services are provided by a third party that is a member of a A Dimension Beyond, Inc. partner program. Any purchase by Customer of any Third Party Applications or services is solely between Customer and the applicable third party provider.
A Dimension Beyond, Inc. is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of such Third Party Applications or services that Customer may purchase or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications or services for use with the Service, Customer agrees that A Dimension Beyond, Inc. may allow such third party providers to access Customer Data as required for the inter operation of such Third Party Applications with the Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. A Dimension Beyond, Inc. shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No purchase of such Third Party Applications or services is required to use the Service.
2.6. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to A Dimension Beyond, Inc.’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by A Dimension Beyond, Inc.. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. A Dimension Beyond, Inc. is not responsible for any Electronic Communications and/or Customer
Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by A Dimension Beyond, Inc., including, but not limited to, the Internet and Customer’s local network.
2.7. Service Level. During the Term, the A Dimension Beyond, Inc. Service will meet the service level specified in the ‘Service Level Commitment’ listed on Schedule I hereto. In the event that A Dimension Beyond, Inc. fails to achieve the applicable service level, Customer will be entitled, as its sole and exclusive remedy, to a credit in accordance with the terms set forth in the applicable Service Level Commitment. A Dimension Beyond, Inc.’s respective system logs and other records shall be used for calculating any service level events.
2.8. A Dimension Beyond, Inc.’s Support. As part of the Service, A Dimension Beyond, Inc. provides Customer with an online knowledge base and online help to assist Customer in its use of the Service. A Dimension Beyond, Inc. also offers additional professional services consultation, and customer support services. Customer acknowledges that A Dimension Beyond, Inc. has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of A Dimension Beyond, Inc. and/or not engaging A Dimension Beyond, Inc. or other A Dimension Beyond, Inc. authorized implementation partner in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
2.9. Security. A Dimension Beyond, Inc. shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.
2.10. Confidentiality. For purposes of this Agreement, ‘Confidential Information’ shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) aggregate statistical data regarding A Dimension Beyond, Inc. products and services that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a ‘need to know’ basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
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2.12. Ownership of Customer Data. As between A Dimension Beyond, Inc. and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, A Dimension Beyond, Inc. as part of its standard Service offering makes backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with A Dimension Beyond, Inc. standard business processes, which period shall not be less than 3 months.
2.13. A Dimension Beyond, Inc. Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by A Dimension Beyond, Inc. or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, A Dimension Beyond, Inc. shall have a royalty-free, worldwide, transferable, sub-licensee, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by A Dimension Beyond, Inc.. A Dimension Beyond, Inc. service marks, logos and product and service names are marks of A Dimension Beyond, Inc.. Customer agrees not to display or use the A Dimension Beyond, Inc. Marks in any manner without A Dimension Beyond, Inc. express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
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2.15. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
3.1. Warranty of Functionality. A Dimension Beyond, Inc. warrants that the Service (i) will achieve in all material respects the functionality of the software release used, and (ii) such functionality will not be materially decreased during the Term. Customer’s sole and exclusive remedy for A Dimension Beyond, Inc.’s breach of this warranty shall be that A Dimension Beyond, Inc. shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality of the software release used and if A Dimension Beyond, Inc. is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the Term. A Dimension Beyond, Inc. shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to myronjc@gmailcom. The warranties set forth in this Section 3.1 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.
3.2. No Virus Warranty. A Dimension Beyond, Inc. warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (‘Malicious Code’), except for any Malicious Code contained in Customer-uploaded data or otherwise originating from Customer.
- Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, A Dimension Beyond, Inc. DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY A Dimension Beyond, Inc.. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.7, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
- Limitations of Liability. CUSTOMER AGREES THAT THE CONSIDERATION WHICH A Dimension Beyond, Inc. IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A Dimension Beyond, Inc. OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 5.
Except with regard to amounts due under this Agreement, and a party’s breach of Section 2.10 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 2.10 (Confidential Information) of this Terms of Service, such maximum liability of either party shall be an amount equal to three (3) times the equivalent of 12 months of subscription fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were A Dimension Beyond, Inc. to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER
PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
6.1. Infringement. A Dimension Beyond, Inc. shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively ‘Claims’) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’fees) (collectively, ‘Losses’) to the extent based upon such a Claim.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after A Dimension Beyond, Inc.
notifies Customer to discontinue use because of an infringement claim, or (c) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by A Dimension Beyond, Inc..
If a Claim of infringement is brought or threatened, A Dimension Beyond, Inc. shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state A Dimension Beyond, Inc.’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
6.2. Disclosure of Customer Data.
A Dimension Beyond, Inc. shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any Claims that arise out of or result directly from A Dimension Beyond, Inc.s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold Customer harmless from and against liability for any Losses to the extent based upon such a Claims.
When A Dimension Beyond, Inc. is at fault but such fault does not rise to the level of gross negligence or willful misconduct, A Dimension Beyond, Inc. shall, at its own expense and subject to the limitations set forth in this Section 6 and on the amount of liability set forth in Section 5 applicable in the event of a breach of Section 2.10, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to A Dimension Beyond, Inc.’s breach of Section 2.10 (Confidential Information) of this Terms of Service.
Provided that A Dimension Beyond, Inc. complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees
paid for under the Agreement for the terminated portion of the Term.
6.3. Customer’s Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section 6, defend A Dimension Beyond, Inc. from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than A Dimension Beyond, Inc. Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.4 (Customer’s Lawful Conduct) or 2.10 (Confidential Information) above and shall hold A Dimension Beyond, Inc. harmless from and against liability for any Losses to the extent based upon such a Claims.
6.4. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.4 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension for Delinquent Account. A Dimension Beyond, Inc. reserves the right to suspend Customer’s
and any Customer Affiliates’ access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after A Dimension Beyond, Inc. has provided Customer two (2) delinquency notices, and at least twenty (20) days have passed since the transmission of the first notice (‘Delinquent Account Status’), or (ii) for which Customer has not paid for the renewal term and has not notified A Dimension Beyond, Inc. of its desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that A Dimension Beyond, Inc. shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that A Dimension Beyond, Inc. may with reasonably contemporaneous notice to Customer suspend access to the Service if A Dimension Beyond, Inc. reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to A Dimension Beyond, Inc. or others. In the extraordinary event that A Dimension Beyond, Inc. suspends Customer’s access to the Service, A Dimension Beyond, Inc. will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer further agrees that A Dimension Beyond, Inc. shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.
7.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party.
Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (‘Notice’). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that A Dimension Beyond, Inc. shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of a breach on A Dimension Beyond, Inc. part, A Dimension Beyond, Inc. shall refund the pro rata portion of any subscription fees paid by Customer to A Dimension Beyond, Inc. under this Agreement for the terminated portion of the Term.
7.4. Handling of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, A Dimension Beyond, Inc. may immediately deactivate Customer’s account and shall be entitled to delete Customer’s account and data after one week. Customer further agrees that A Dimension Beyond, Inc. shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that A Dimension Beyond, Inc. is in compliance with the terms of this Section 7.4.
- Modification; Discontinuation of The Service.
8.1 To the Service. A Dimension Beyond, Inc. may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. A Dimension Beyond, Inc. reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. A Dimension Beyond, Inc. shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.1.
8.2 To Applicable Terms. If A Dimension Beyond, Inc. makes a material change to any applicable Terms, then A Dimension Beyond, Inc. will notify Customer by either sending an email to the notification email address or posting a notice in the Administrator’s user interface of Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify A Dimension Beyond, Inc. via firstname.lastname@example.org. within twenty days after receiving notice of the change. If Customer notifies A Dimension Beyond, Inc. as required, then Customer will remain governed by the Terms in effect immediately prior to the change until the end of the then current term for the affected Service. If the affected Service is renewed, it will be renewed under A Dimension Beyond, Inc. then current Terms.
‘Affiliates’ means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
‘Customer Data’ means all electronic data or information submitted to the Service by Customer or its Affiliates.
‘Electronic Communications’ means any transfer of signs, signals, text, images, sounds, video, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
‘Service’ collectively, A Dimension Beyond, Inc. online hosting services (the ‘A Dimension Beyond, Inc. Service’), including associated offline components, but excluding Third Party Applications and implementation services.
‘Third Party Applications’ means online, Web-based applications and offline software products that are provided by third parties, and inter operate with the Service.
‘Users’ means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been registered, and who have been supplied user identifications and passwords by Customer (or by A Dimension Beyond, Inc. at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.
‘User Guides’ means the online user guides for the Service, accessible via login at adimensionbeyond.com, as updated from time to time.
SERVICE LEVEL COMMITMENT
SUBSCRIBERS OF OPENSIM SERVICES
Service Level Commitment A Dimension Beyond, Inc. currently offers OpenSim Hosting Services with a „Best Effort“ service level. The reason is that OpenSim is still under development and alpha software. If User wants to benefit from regular software updates, including new features and bug fixes, we currently cannot guarantee a fixed service level.
Our service statistics show, that in the past we were able to anyway provide a service availability of about 99.5% and better, excluding scheduled maintenance times.
Scheduled and Unscheduled Maintenance Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. A Dimension Beyond, Inc. hereby provides notice that every Saturday night 8:00pm – 8:30pm Pacific Time / 11am – 11:30am Central European Time is reserved for routine scheduled maintenance for use as needed.
A Dimension Beyond, Inc. in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.
Updates/Notice This Service Level Commitment may be amended by A Dimension Beyond, Inc. in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your A Dimension Beyond, Inc. account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer’s account.
Exclusion of Testing Accounts Testing accounts, services and other test environments are expressly excluded from this or any other service level commitment.