Spade Technology, Inc. Cloud Services Terms

GENERAL TERMS AND CONDITIONS

Services: Spade Technology shall provide to Client Managed Cloud Services in accordance with SCHEDULE A. Managed Cloud Services includes the hosting of servers and associated network services in a highly secure, highly redundant data center.  Spade Technology’s normal working hours for the purpose of this Agreement are 8:00 am to 5:00 pm Eastern Standard Time, Monday through Friday excluding Spade Technology Recognized Holidays.

Thirty (30) Day Guarantee: If Client is not satisfied with Spade Technology, Inc. in any way within the first thirty (30) days of our service, submit your issue to us in writing and we will refund one hundred percent (100%) of the labor service fees you paid for those first thirty (30) days of service as well as terminate all services.

Term and Termination: This Agreement shall be in effect for a one (1) year term, unless otherwise stated in SCHEDULE A, and shall automatically renew for subsequent one (1) year terms commencing on the one (1) year anniversary of the Effective Date unless notification sent in writing by either party is received 30 days before end of term. Cancellation after the initial Thirty (30) Day Guarantee period will result in Client paying Spade Technology for the remaining balance of the Agreement. Spade Technology will provide transitional support for thirty (30) days. Spade Technology may terminate this agreement upon sixty (60) days written notice to the Client and will likewise provide transitional support for thirty (30) days. Upon cancellation all Spade Technology provided equipment must be returned. Failure to return Spade Technology’s equipment within thirty (30) calendar days will result in charges to cover the cost(s) associated with replacing the unreturned equipment. Client agrees to pay such charges whether the equipment is unreturned, lost, stolen or destroyed. Either party may terminate this agreement immediately if the other party becomes insolvent, or bankrupt, liquidated or dissolved, or ceases substantially all of its business. Neither party shall be liable for damages resulting from a termination of this agreement as provided for herein.

Fees: Fees will be calculated based upon the information provided in SCHEDULE A. Fees are billed monthly, in advance and commence on the Effective Date; if the Effective Date is other than 1st of the month, prorated fees for the initial month and following month will be billed in advance. Client’s provided credit card or ACH will be charged on the invoice due date. A finance charge of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) late payment fee will be assessed on any unpaid balance remaining after due date. Fees stated in this Agreement are subject to increase by three percent (3%) each year. Spade Technology reserves the right to refuse or suspend service under this Agreement in the event Client has failed to keep the account current. Spade Technology has a minimum monthly fee of $1,500 in order to maintain service.

Representation and Warranties: Each party represents and warrants to the other that (i) it has all necessary authority to enter into and perform its obligations under this agreement without the consent of any third party, and (ii) that it shall comply in all material respects with all laws applicable to the performance of the Services. THE PARTIES HERETO MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT.

Assignment: Spade Technology may assign this Agreement to an affiliate or third party without the prior consent of Client.

Confidential Information: Spade Technology will keep all Client information confidential. Spade Technology may share or make transfers of Client’s data (including confidential information) as is reasonably necessary and/or incidental to Spade Technology’s performance of the services provided under this Agreement. This section shall survive the termination of this Agreement.

Non-Solicitation: The Client hereby agrees not to solicit, recruit, hire or otherwise to retain the services of any Spade Technology, Inc., Inc. employee except through Spade Technology, Inc., Inc. for a period of one (1) year following the Agreement termination. Should the Client do so, as compensation for the cost to Spade Technology, Inc.’s investment in recruiting, developing, training of or loss of services of the said employee, the Client agrees to pay to Spade Technology a sum equal to one hundred percent (100%) of the said employees previous twelve (12) month Spade Technology compensation within five (5) days of the said employee’s date of employment by Client.

Maintenance: Spade Technology will perform regularly scheduled maintenance tasks to keep server(s), workstation(s), network equipment & other hardware running efficiently and to minimize exposure against security threats. Many of these tasks require hardware to be restarted. Spade Technology reserves the right to conduct after-hours/weekend maintenance and restarts.

Software Licensing: Spade Technology will not support unlicensed software. In the event that the Client has unlicensed software, the Client is responsible for achieving 100% license compliance.

Network Intrusion: While Spade Technology will make commercially reasonable efforts to secure wired and/or wireless network connections, consistent with other services of this nature, the presence of hackers, viruses, malware, adware, spyware, spam and the Client’s own email and web surfing may compromise the integrity of the Client’s hosted environment. Client hereby releases Spade Technology from liability for economic or non-economic loss resulting from any network intrusion or the compromise of the Client’s wired and/or wireless network.

Title of Software, Documentation and Services: No ownership or title of the Software, Documentation or Services used to deliver the Back-up Service is conveyed to the Client under the terms of this Agreement.

Warranties: Work will be performed to the best of Spade Technology’s ability and in accordance with reasonable and customary practices prevailing at the time. Client acknowledges that the software and hardware used to provide the service may contain bugs, errors or other problems. The software and third-party products which are supplied with the software are provided “as is” without any warranties of any kind. Spade Technology makes no warranties, express or implied, including but not limited to warranties of or relating to merchantability, fitness for a particular purpose, or non-infringement of third parties’ rights.

Liability: Neither Spade Technology, Spade Technology’s employees nor agents will be liable in contract, tort or negligence for any consequential losses, indirect losses, liability, injury, damages or any other claim for consequential compensation whatsoever, including loss of profit, costs, and expenses from or in connection with any contract or agreement or breach thereof. Spade Technology will not be liable for any consequential loss or damages due to unauthorized ‘hacking’ of the network infrastructure.

Spade Technology Recognized Holidays:

1. New Year’s Day Every January 1st or nearest business day
2. Memorial Day Last Monday of May
3. Independence Day Every July 4th or nearest business day
4. Labor Day 1st Monday of September
5. Thanksgiving Day 4th Thursday of November
6. Christmas Day Every December 25th or nearest business day

Notice: All notices required to be sent shall be in writing and shall be deemed to have been given when received by email, if provided during normal business hours, otherwise, it shall be deemed to have been given on the next business day, given by personal delivery, mailed by registered mail, return receipt requested to the address set forth below or to any other address specified by a party in writing for notification. To expedite order processing, the Client agrees that Spade Technology may treat documents faxed by the Client to Spade Technology as original documents; nevertheless, either party may require the other to exchange original signed documents. All notices referred to in this Agreement shall be sent to:

Spade Technology, Inc.
800 South Main Street, Suite 301
Mansfield, MA 02048
508-339-5174 fax
info@SpadeTechnology.com

Venue: This agreement is made in Bristol County, Massachusetts, and venue shall be proper only in the County of Bristol County, Massachusetts, in any action brought relating to this Agreement.

Dispute Resolution: In the event of any dispute under or relating to this Agreement, the Client agrees to participate in non-binding mediation before a mutually agreed upon mediator in Bristol County, Massachusetts. Other than any emergency injunctive relief that is otherwise available under this Agreement, the parties agree not to initiate a court action or arbitration against the other until after completion of such mediation has occurred. So long as the prevailing party in any such action participated in mediation under this paragraph (or was excused from same due to the other party’s refusal to mediate), then such prevailing party shall be entitled to costs and reasonable attorneys’ fees.

Force Majeure: Spade Technology shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond its reasonable control, including, but not limited to, acts of God, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action, equipment failure or power failure.

Indemnification: Client shall protect, indemnify, hold harmless and defend Spade Technology, Inc., its officers, agents and employees against any and all claims, demands, damages, costs, expenses, attorney’s fees, expert costs and fees, or liability costs arising out of the design, sale, lease, installation, repair, service, dispatch, maintenance, monitoring, recording of communications, operation or no operation of the equipment and compliance with all laws. Except as otherwise provided herein, Client waives all claims and recourse against Spade Technology, including without limitation the right to contribution for loss or damage to persons or property arising from or relating to this Agreement, except as to gross negligence or willful misconduct of Spade Technology, its officers, agents or employees.

Complete Agreement: The Managed Cloud Services Agreement, including SCHEDULE A and these Managed Cloud Services Terms and Conditions shall constitute the entire Agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements with respect to same.

SERVICE LEVEL AGREEMENT

1. General

1.1   This section contains a service level agreement (“SLA”) setting out the levels of services to be provided by Spade Technology to the Customer under this Agreement and compensation (as a genuine pre-estimate of loss) for failure to meet those service levels.

1.2   In this SLA a reference to a paragraph, unless stated otherwise is a reference to a paragraph of this SLA section.

1.3  In this SLA words, abbreviations and expressions have the meanings given in the Conditions except as set out below:

“Availability” means all the time in any calendar month for which the customer is capable of accessing a login prompt and the Services are not subject to any Service Affecting Faults, and “Available” shall be construed accordingly;

“Business Day” means every day excluding Saturdays and Sunday and public holidays in the United States;

“Service Affecting Fault” means an event which causes loss of external connectivity for the Services; and

“Third Party System” means a telecommunication system, network, indirect network carriers, exchange or any other equipment that is neither owned nor operated on behalf of Spade Technology.

1.4 This SLA only applies to the Services to the extent they are owned or operated by or on behalf of Spade Technology.

1.5 Spade Technology shall not be liable to pay compensation under this SLA where its failure to meet any of its obligations under this SLA is a caused by:

(a) a Force Majeure Event;

(b) a failure in the Customer or User equipment;
(c)  a failure of any Third Party System;

(d) any act or omission of the Customer or User or third party acting on its or their behalf;

(e) failure of the Customer to connect to the Services;

(f) failure of the Customer to follow published processes;

(g) failure  of  the  customer  to  optimize,  maintain,  secure,  configure,  or troubleshoot the operating system or the software contained within.

1.6 The maximum monthly credit available under this SLA is limited to an amount equal to the monthly Fee for the specific Customer or User Environment.

1.7 Credits or other compensation under this SLA shall only be payable where

(a) the Customer notified Spade Technology at the time of the event by submitting a ticket in a timely manner,

(b) the Customer has submitted to Spade Technology a claim in writing identifying the circumstances in which the Customer claims that the credit or compensation arose, and

(c) Spade Technology has agreed in writing to that claim. Spade Technology shall not unreasonably withhold or delay such agreement.

All credits so payable shall be applied to the Customer’s next monthly bill for Service following Spade Technology’ agreement to the claim. All claims for credits or compensation must be submitted promptly and in any event within 10 Business Days, after the occurrence of the circumstances giving rise to the claim.

1.8 The parties acknowledge that the service credits and compensation set out in this SLA are reasonable pre-estimates of the Customer’s loss and are not penalties.

1.9 Spade Technology reserves the right to amend the SLA from time to time. If the amendment results in a material reduction in the service levels provided or the size or nature of the compensation payments Spade Technology is liable to make, the Customer shall have the right to terminate the Service on 30 days’ notice.

2. Service Levels applicable to Service Availability

2.1 Spade Technology guarantees that the Service shall have 99.99% Availability, not including maintenance periods or periods caused by the events described in section 1.5.

2.2 If the Availability falls below 99.99% in any month, Spade Technology will credit the Customer with one days’ free service.

2.3 Spade Technology shall not be obliged to pay compensation in accordance with paragraph 2.2 where Availability falls below 99.99% because of routine or emergency maintenance of the Services pursuant to Paragraph 4.

3. Service Levels applicable to Fault handling

3.1 The Customer shall report all Service Affecting Faults in the Service to Spade Technology on the Spade Technology ticketing system or such phone number as Spade Technology may notify to the Customer from time to time.

3.2 Spade Technology shall raise a trouble ticket and issue a reference number to the Customer and shall repair the Service Affecting Fault within the timescales for repair as set out in Table 1 below. If Spade Technology fails to repair a Service Affecting Fault within the relevant timescale, the Customer may claim the compensation set out in Table 1.

3.3 Timing starts when a trouble ticket is raised and a reference number is issued to the Customer.

3.4 The Customer may obtain updates on the status of tickets by checking the Spade Technology ticketing system and under the ticket number assigned to the matter or such number as Spade Technology may notify to the Customer from time to time.

3.5 Spade Technology shall notify the Customer by telephone or e-mail when the Service Affecting Fault has been repaired and the Service has been successfully restored. The trouble ticket will then be closed.

Event	Time to restore (“TTR”)	Hours past TTR	Number of free days service for which the Customer will be credited
Service Affecting Fault	4  hours from determination that the Service Affecting Fault is a result of lost external connectivity	0-4	1
		4-9	2
		9-14	3
		14-19	4
		19+	5

4. Service Levels applicable to Network and Service Equipment Maintenance

4.1 Spade Technology may suspend the Services to carry out periodic maintenance or upgrade work on the Services. The parties agree that this planned suspension or diminution of the Service shall not be included in any calculation for compensation under Paragraph 3 above and will not be included as part of any service level calculations.

4.2 Except in the case of an emergency, Spade Technology shall use reasonable endeavors to provide the Customer with notice of any suspension of the Service under Paragraph

4.2.1. If it fails to provide the appropriate notice, the Customer shall be entitled to a credit of one day’s free Service. The Customer notes and agrees that this Paragraph is appropriate notice of the suspension of the Service under the terms of this Agreement.

4.3 Spade Technology shall use reasonable endeavors to ensure that any disruption or interruption to the Services is kept to a minimum. Spade Technology shall use reasonable endeavors not to suspend the Service for planned maintenance or upgrade work more than 12 times in any calendar year.

ACCEPTABLE USE POLICY

1 The Customer and each User shall:

1.1 comply with all applicable laws and regulations with respect to its activities under this Agreement;

1.2 carry out all other Customer or User responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s or User’s provision of such assistance as agreed by the parties, Spade Technology may adjust any agreed timetable or delivery schedule as reasonably necessary;

1.3 procure that the Users use the Services and the Documentation in accordance with and subject to the terms  and  conditions  of  this  Agreement  and  shall  be  responsible  for  any  User’s  breach  of  this Agreement and hereby agrees to indemnify, keep fully and effectively indemnified and hold harmless Spade Technology from and against all costs, claims, damages, demands, losses, liabilities, fines, awards and expenses,  howsoever  suffered  or  incurred  by  Spade Technology  arising,  from  any  User’s  breach  of  this Agreement;

1.4 obtain and shall maintain all necessary licenses, consents, and permissions necessary for Spade Technology, its contractors and agents to perform their obligations under this Agreement, including, without limitation, the Services;

1.5 ensure that its network and systems comply with the relevant specifications provided by Spade Technology from time to time; and

1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Spade Technology’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s or a User’s network connections or telecommunications links or caused by the internet.

2 THE CUSTOMER AND USERS SHALL NOT:

2.1 except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.3 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.4 use the Services and/or Documentation to provide services to third parties; or

2.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except Users, or

2.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Agreement.

3 THE CUSTOMER SHALL USE ALL REASONABLE ENDEAVOURS TO PREVENT ANY UNAUTHORISED ACCESS TO, OR USE OF, THE SERVICES AND/OR THE DOCUMENTATION AND, IN THE EVENT OF ANY SUCH UNAUTHORISED ACCESS OR USE, PROMPTLY NOTIFY SPA