1. ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE IRON SOLUTIONS SUBSCRIPTION SERVICES AGREEMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE ACCEPTING THE TERMS.
2. Terms of Service. Customer has read, acknowledges and agrees that the following terms of service, together with the terms of the Subscription Services Agreement entered into between Customer and Iron Solutions and the NetSuite Terms of Service, posted at www.netsuite.com/resellerTOS (as updated from time to time), shall govern Customer’s access and use of the Service (the “Agreement”). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Subscription Services Agreement signed by Customer. 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. Iron Solutions may modify these terms of service, as well as its Privacy Policy, at any time, for any or no reason. Such modified terms and conditions will become effective ten (10) days after they are initially posted (unless Iron Solutions is required by law to modify such terms and conditions in less than ten (10) days. Continued use of the Service after such modified terms and conditions have been posted will constitute Dealer’s acceptance thereof and agreement to be bound by such modified terms.
2.1. Customer Must Have Internet Access. In order utilize the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web. Customer understands that DSL, cable, or other high speed Internet connection is required for proper performance of the Service.
2.2. Accuracy of Customer’s Contact Information. Customer agrees to 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. Passwords, Access, and Notification. Customer shall authorize access to and assign unique passwords and user names to the number of Users purchased by Customer on the Estimate/Order Form. Customer agrees that Customer is prohibited from sharing passwords and/or user names with any unauthorized user. Customer will be responsible for the confidentiality and use of Customer’s 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 Dealer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Iron Solutions 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 agrees to immediately notify Iron Solutions if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.
2.4. Customer’s Lawful Conduct.The Service allows Customer to send Electronic Communications directly to Iron Solutions and to third-parties. Customer agrees to 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, export and anti-spam legislation and shall obtain any permits or licenses required for such compliance. Customer will not send any Electronic Communications from the Service that are 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 Iron Solutions. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Service, or by creating Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Iron Solutions. Neither Customer, nor someone acting on Customer’s behalf, will use the Service to target for solicitation any Iron Solutions customers for purposes of providing any competitive product. Customer shall ensure that any use of the Service by Customer’s employees (or Customer’s other authorized users) is in accordance with the terms and conditions of this Agreement.
2.5. Third-Party Software. Customer agrees to use third party software necessary for accessing the Service, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by Iron Solutions. Until notified otherwise by Iron Solutions, Customer agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Iron Solutions and to follow logon procedures for services that support such protocols. Customer agrees that Iron Solutions 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, he Internet, which are not owned or operated by Iron Solutions. Iron Solutions may offer certain Third Party Applications for sale under Estimate/Order Forms. Any purchase of such Third Party Applications by Customer shall be subject to the terms specified in such Estimate/Order Forms. In addition, Iron Solutions (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. Iron Solutions does not warrant any such Third Party Applications or services except as set forth in the Estimate/Order Form, whether or not such Third Party Applications are designated by Iron Solutions as “certified,” “approved”, “recommended” or otherwise. Any purchase by Customer of any Third Party Applications or services is solely between Customer and the applicable third party provider. Iron Solutions 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 Iron Solutions may allow such third party providers to access Customer Data and Dealer Data as required for the interoperation 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. Iron Solutions shall not be responsible for any disclosure, modification or deletion of Customer Data and Dealer Data resulting from any such access by 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 Customer’s use of the Service. Customer expressly consents to Iron Solutions’ interception and storage of Electronic Communications and/or Customer Data and Dealer 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 Iron Solutions. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur (including but not limited to encryption and compression) in order to conform and adapt such data to the technical requirements of connecting networks or devices. 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. Customer agrees that Iron Solutions is not responsible for any Electronic Communications and/or Customer Data and Dealer Data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Iron Solutions, including, but not limited to, the Internet. Iron will not be responsible for any claims, losses or damages that are attributable to Customer Data or Dealer Data being inaccurate or incomplete.
2.7. Iron Solutions’ Support. Iron Solutions will make commercially reasonable efforts to promote Customer’s successful utilization of the Service, including but not limited to providing Customer with User Guides, Knowledge Base and online help, as well as optional and “for fee” training classes. Iron Solutions also offers customer support and professional services consultation. Customer acknowledges that Iron Solutions has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Iron Solutions or engaging Iron Solutions or other Iron Solutions 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.
2.8. Trademark Information. Iron Solutions®, the Iron Solutions logo®, IronHQ®, IronSearch® and other Iron Solutions service marks, logos, and product and service names are marks of Iron Solutions (the “Iron Solutions Marks”). NetSuite®, the NetSuite logo®, NetCRM®, NetERP™, SuiteFlex™, the NetCRM logo™, and other NetSuite service marks, logos and product and service names are marks of NetSuite (the “NetSuite Marks”) Customer agrees not to display or use the Iron Solutions Marks or NetSuite Marks in any manner without Iron Solutions’ or NetSuite’s express prior written permission.
2.9. Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data and Dealer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (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 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. 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 recipient, subsequent to disclosure by the disclosing party; or (4) the recipient 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 recipient. Notwithstanding the foregoing, this Section 2.9 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. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance under this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.
2.10. Additional Modules. In the event that during the Term Customer elects to utilize additional modules of the Service beyond those covered by the initial Estimate/Order Form, Customer agrees that it cannot subsequently revert to the original selection of modules without incurring significant professional services charges to manually affect that conversion which is equivalent to implementing a new account.
2.11. Storage Limits. Iron Solutions currently limits the amount of database storage to 10GB. Any customers using database storage in excess of this limit will be charged additional fees.
2.12. License from Customer. Customer understands and agrees that it is Iron Solutions’ practice to make tape back up copies of the Customer Data and Dealer Data in Customer’s account. Customer acknowledges and agrees that Iron Solutions and its licensor may store and maintain such data for approximately one year (unless legally required to maintain such Customer Data and Dealer Data longer). Subject to the terms and conditions of this Agreement, Customer grants Iron Solutions and its licensor a limited non-exclusive non-transferable (except in connection with an assignment under Section 10 of the Subscription Services Agreement) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data and Dealer Data to the extent necessary to provide the Service to Customer. Customer agrees that the license to store and maintain Customer Data and Dealer Data shall survive the termination of this Agreement for approximately one year for the sole purpose of storing backup Customer Data and Dealer Data at Iron Solutions’ offsite storage facility. Subject to the terms of this Agreement, Iron Solutions agrees that, as between Customer and Iron Solutions, Customer Data and Dealer Data shall at all times be considered the property of Customer.
2.13. User Content. The Service permits users to post User Content to the Site, and by posting such User Content the user grants to Iron Solutions the right to host and publish such User Content for the benefit of other users. Iron Solutions does not claim ownership of any right in the User Content. Each user is solely responsible for its User Content, and represents and warrants that he or she owns or has all necessary rights to such User Content, and that any User Content posted does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate the law or any third party’s intellectual property or proprietary right.
2.14. Copyright Infringement. Iron Solutions is committed to respecting the intellectual property rights of others, and expects users of the Sites and Services to do the same. Iron Solutions may terminate your registration with the Site or deny Customer or any user access to or use of the Site and/or Service if Customer or any user infringes, or are believed to be infringing, a copyright or other intellectual property right. In addition, Iron Solutions reserves the right to remove, or disable access to, infringing material.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Iron Solutions will respond expeditiously to claims of copyright infringement on the Site that are reported to Iron Solutions’ “Designated Copyright Agent,” identified below. If Customer have a good faith belief that any material or content made available on the Site infringe Customer’s copyright, Customer may send Iron Solutions’ Designated Copyright Agent a notice requesting removal of the material. Your notice of infringement must include the following: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are involved, a representative list of such works, (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit Iron Solutions to locate the material on the Site, (d) the name, address, telephone number and email address (if available) at which Iron Solutions may contact the complaining party, (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law, and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If Customer has a good faith belief that a copyright infringement notice has been wrongly filed against you, the DMCA permits you to send a counter notice to Iron Solutions. Notices and counter notices must meet then-current statutory requirements under the DMCA. The text of the DMCA may be found on the U.S. Copyright Office website at http://www.copyright.gov/. All notices and counter notices should be delivered to Iron Solutions’ Designated Copyright Agent at the following address:
3. Warranties.
3.1. Warranty of Functionality. Iron Solutions warrants to Customer during the Term that the Service will achieve in all material respects the functionality described in the User Guides applicable to the products purchased by Customer. Iron Solutions does not warrant that the Service will be error-free. Customer’s sole and exclusive remedy for Iron Solutions’ breach of this warranty shall be that Iron Solutions shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and other related documentation and if Iron Solutions is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the subscription fees paid for under the Agreement for its use of the Service for the terminated portion of the Term. Iron Solutions 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 [email protected].
3.2. Service Level Warranty. Iron Solutions warrants that during the Term that Iron Solutions will meet the service level specified in the “Service Level Commitment” listed on Schedule I hereto, which is hereby incorporated by reference. In the event that Iron Solutions fails to achieve the applicable service level in any month, Customer will be entitled, as its sole and exclusive remedy, to a credit in accordance with the terms set forth in the Service Level Commitment. Customer agrees that Iron Solutions’ system logs and other records shall be used for calculating any service level events.
3.3. Security, Data Integrity and Backup Warranty. Iron Solutions warrants during the Term of this Agreement that Iron Solutions will use commercially reasonable efforts to safeguard and accurately maintain Customer Data and Dealer Data, utilizing at a minimum industry standard security and backup procedures. In the event of a breach of this provision, Iron Solutions will use commercially reasonable efforts to restore the Customer’s Data as quickly as possible but in any case not to exceed three (3) business days.
3.4. No Virus Warranty. Iron Solutions warrants that the Service shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, IRON SOLUTIONS AND ITS LICENSORS DO 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 SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY IRON SOLUTIONS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA OR NON-INFRINGEMENT. EXCEPT AS STATED IN SECTION 3 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.
5. Limitations of Liability. CUSTOMER AGREES THAT THE CONSIDERATION WHICH IRON SOLUTIONS IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY IRON SOLUTIONS OR ITS LICENSORS OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL CUSOMER, IRON OR ITS LICENSOR BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF CUSTOMER DATA AND DEALER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. Except with regard to amounts due under this Agreement, and a party’s breach of Section 2.9, or misappropriation or use of any IRON Data or Manufacturer Data other than through the Service and in connection therewith, 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 license fees applicable at the time of the event. In the event of a breach of Section 2.9 of this Agreement ,or misappropriation or use of Manufacturer Data other than through the Service and in connection therewith the maximum liability of either party shall be an amount equal to five (5) times the equivalent of 12 months of subscription fees applicable at the time of the event. In the event of any misappropriation or use of IRON Data other than through the Service and in connection therewith, there will be no cap on liability and IRON will be entitled to recover any and all damages it can demonstrate it has incurred. 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 the license of the Service and that, were IRON Solutions to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. 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. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW
6. Indemnification.
6.1. Infringement. Iron Solutions will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, Losses”) arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer to the extent arising out of or result from the infringement by Iron Solutions of any copyright, trademark, or misappropriation of a trade secret relating to the Service; provided that Customer (a) promptly gives Iron Solutions notice of the claim, suit, action, or proceeding; (b) gives Iron Solutions sole control of the defense and related settlement negotiations; and (c) provides Iron Solutions with all reasonably available information and assistance necessary to perform Iron Solutions’ obligations under this paragraph. 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 Iron Solutions notifies Customer to discontinue use because of an infringement claim, or (c) modifications to the Services made other than by Iron Solutions. If the Service is held to infringe, Iron Solutions will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; or (b) to replace the Service with a non-infringing Service. Provided that Iron Solutions complies with this Section 6.1, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for the terminated portion of the Term.
6.2. Disclosure of Customer Data and Dealer Data. Iron Solutions will indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result directly from Iron Solutions’ gross negligence in preventing an authorized access to confidential Customer Data and Dealer Data or Iron Solutions’ willful misconduct in disclosing Customer Data and Dealer Data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. Iron Solutions will indemnify Customer up to an amount equal to five (5) times the equivalent of 12 months of license fees applicable at the time of the event, from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to Iron Solutions’ breach of Section 2.10 of this Agreement (which breach does not rise to the level of gross negligence in preventing unauthorized access to confidential Customer Data and Dealer Data or willful misconduct in disclosing such confidential Customer Data and Dealer Data as described in this Section 6.2). Iron Solutions’ indemnification obligations under this Section 6.2 are expressly premised upon Customer (a) promptly giving Iron Solutions notice of any such third party claim, suit, action, or proceeding; (b) giving Iron Solutions sole control of the defense and related settlement negotiations; and (c) promptly providing Iron Solutions with all reasonably available information and assistance necessary to perform Iron Solutions’ obligations under this Section 6.2. Provided that Iron Solutions 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 license fees paid for under the Agreement for the terminated portion of the Term.
6.3. Customer’s Indemnity. Customer shall indemnify, defend, and hold Iron Solutions harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Iron Solutions which arise out of or result from a claim by a third-party (i) alleging that the Customer Data and Dealer Data or any trademarks or service marks other than Iron Solutions 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 and 2.10 above, provided that Iron Solutions (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer’s obligations under this paragraph.
6.4. Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7. Suspension/Termination.
7.1. Suspension for Delinquent Account. Iron Solutions reserves the right to suspend Customer’s access to and/or use of the Service (and that of any other customer of Iron Solutions that controls, is controlled by, or is under common control with Customer) (a “Customer Affiliate”)) for any accounts for which any payment is due but unpaid but only after Iron Solutions has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice (“Delinquent Account Status”). Iron Solutions also reserves the right to suspend Customer’s access and/or use of the Service in the event that any Customer Affiliate account is in Delinquent Account Status. Customer agrees that Iron Solutions shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service resulting from Customer’s nonpayment of fees as described in this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that Iron Solutions may with reasonably contemporaneous telephonic notice to Customer suspend Customer’s access to the Service if Iron Solutions reasonably concludes that Customer is using the Service to engage in denial of service attacks, spamming, or using the Service to engage in illegal activity, and/or Customer’s use of the Service is causing immediate, material and ongoing harm to Iron Solutions or others. In the extraordinary event that Iron Solutions suspends Customer’s access to the Service, Iron Solutions will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that Iron Solutions 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. In the Event of Breach. Either party may terminate this Agreement upon thirty (30) days formal written notice to the other party in the event of a material breach of any provision of this Agreement by the other 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 (“Notice”). Following receipt of such Notice, the alleged breaching party shall have thirty (30) days to cure such alleged breach, after which time the Agreement shall terminate only if the alleged breach was not cured. 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 Iron Solutions 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 Iron Solutions’ part, Iron Solutions shall refund the pro rata portion of any fee paid by Customer for the terminated portion of the Term.
7.4. Handling of Customer Data and Dealer Data in the Event of Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, Iron Solutions may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be able to delete Customer’s account and related Customer Data and Dealer Data from Iron Solutions’ “live” site, while retaining Customer Data and Dealer Data offsite storage. However, in the event that Customer’s Service with Iron Solutions terminates, Iron Solutions will grant Customer temporary, limited access to the Service for the sole purpose of permitting Customer to retrieve lawful Customer Data and Dealer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Iron Solutions. Customer further agrees that Iron Solutions 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, and Dealer Data provided that Iron Solutions is in compliance with the terms of this Section 7.4.
8. Modification to or Discontinuation of the Service. Iron Solutions reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that Iron Solutions modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Iron Solutions, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Iron Solutions is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for the terminated portion of the Term. Customer acknowledges that Iron Solutions reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that Iron Solutions shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.
9. Modification to the Terms of Service. These Terms of Service may be amended by Iron Solutions in its discretion by providing thirty days advance notice to a user designated as an administrator of your Iron Solutions 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.
10. Definitions
“Customer Data” means “personally identifiable information regarding Dealer’s end user customers which Dealer obtains in the course of its relationship with those customers all electronic data or information submitted by Customer to the Service.
“Dealer Data” which means data pertaining to Dealer’s inventory, sales lead status and transactions data.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“Estimate/Order Form” means an Iron Solutions estimate, renewal notification or order form executed by Customer and accepted by Iron Solutions which specifies the Service and implementation services to be provided by Iron Solutions subject to the terms of this Agreement.
“IRON Data” which means all data created or acquired by Iron and made available through the Service, including, but not limited to all data included in IRON’s “Official Guide” publications.
“Knowledge Base” means the online application known as “Knowledge Base” which is designed and made available by Iron Solutions’ licensor to present timely information that addresses more sophisticated questions that often apply to more specific circumstances. It currently contains more than 2,000 solutions that are available 24 hours a day/7 days a week.
“Manufacturer Data” which means data and information provided under license to Iron Solutions by the manufacturer of equipment including, but not limited to, product descriptions, pricing, dealer discount programs and sales lead information.
“Service” means Iron Solutions online business application suite and modules as described in the applicable User Guides that is purchased by Customer from Iron Solutions in the Estimate/Order Form and any subsequent Estimate/Order Form from time to time, 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, interoperate with the Service, and are identified as third party applications, including but not limited to those listed on the service techincal documentation and user guides.
“Users” means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Iron Solutions at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents.
“User Guides” means the detailed online guides that explain the workflow and setup of features like SFA and Marketing, Customer Service and Web Store.
“URL Terms” means the terms with which Customer must comply, which are located at a URL and referenced in this Agreement.
“User Content” means any such content that is not created by Iron Solutions or Dealer but that is uploaded to the Site by users including Dealer’s customers is made available to Customer or other users through the Site, including, without limitation, text, data, graphics, photographs, artwork, hypertext links or other material, websites and content proximately reachable from such User Content.
Schedule I
SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF IRON SOLUTIONS
Service Level Commitment
Iron Solutions commits to provide 99.5% uptime with respect to the Customer’s Service during each month of the Term, excluding regularly scheduled maintenance times. If in any month this uptime commitment is not met by Iron Solutions and Customer was negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), Iron Solutions shall provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Service.
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. Iron Solutions hereby provides notice that every Saturday night 10:00pm -10:20pm Pacific Time is reserved for routine scheduled maintenance for use as needed. Iron Solutions 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. In addition, there will be a regular server maintenance window, when Microsoft, Adobe and Oracle release their software patches the second Tuesday of each month. These updates will be applied the second or third Thursday of each month at 7:00pm Pacific Time and will be completed by 11:00pm.
Credit Request
In order to receive a credit under this service level commitment, Customer must request it simply by emailing Iron Solutions at [email protected], within five days of the end of the applicable quarter. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Iron Solutions are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to two years from the quarter for which the credit was issued. Iron Solutions shall calculate any service level downtime using Iron Solutions’ system logs and other records.
Updates/Notice
This Service Level Commitment may be amended by Iron Solutions 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 Iron Solutions 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 Sandbox and Beta Accounts
Iron Solutions Sandbox, Beta and debugger accounts and other test environments are expressly excluded from this or any other service level commitment.