Hosting Service Agreement

Revision 2010-09-28-1 

This Hosting Service Agreement ("Agreement") defines the terms under which Clarity Technology Group, Inc. provides hosting service. This Agreement is a binding contract between Clarity Technology Group, Inc. ("Clarity"), a Wisconsin Corporation and any person, company or legal entity (collectively, "Customer") using hosting services provided by Clarity.

THE ELECTRONIC OR MANUAL SIGNING OF AN ORDER FOR SERVICE (“ORDER”), THE USAGE OF HOSTING SERVICES OR THE PAYMENT FOR HOSTING SERVICES MADE BY CUSTOMER CONSTITUES AN ACCEPTANCE OF THIS AGREEMENT. CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND CLARITY’S ACCEPTABLE USE POLICY ("AUP") AS POSTED AT WWW.CLARITYTECH.COM/LEGAL.

1. Scope

This agreement applies to any service or combination of services ordered by Customer and provided by Clarity to Customer that involves the use of Clarity facilities or Clarity owned computer systems to host data owned by Customer or host applications used by Customer (collectively, “the Service”). The types of services include but are not limited to Clarity developed and hosted application, web site hosting, e-mail hosting, e-mail filtering, e-mail archiving, offsite backup or storage hosting, FTP hosting, dedicated server hosting and any other data or application hosting.

2. Modifications to this Agreement 

Customer agrees that Clarity may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of the Agreement at www.claritytech.com/legal.

Clarity agrees that the revised version of this Agreement will be posted at least 30 days before the effective date of any revisions.

Clarity agrees to notify Customer at least 30 days prior to the effective date of any material changes to this Agreement in accordance with the notice provisions set forth in Section 12. As the notice provisions set forth do not guarantee delivery of notification, it is Customer’s responsibility to check the Clarity website periodically for changes to this Agreement and the AUP.

Customer may request that Clarity provide a mechanism for acknowledgement of notices of material changes to this Agreement. Requests to provide such mechanism must be received and acknowledge by Clarity at least 30 days prior to a revised Agreement being posted. With such mechanism in place, Customer must acknowledge notices before the effective date of the revised Agreement. In the case that Customer does not acknowledge or accept the changes to this Agreement, Clarity, at its sole discretion, may choose to continue to provide the Service under the preceding revision of this Agreement or terminate the services as set forth in Section 4.2 below.

By continuing to utilize the Service after the effective date of any revisions to this Agreement, Customer agrees to be bound by the revised Agreement.

3. Term, Billing Cycle and Early Cancellation Fee 

The term of this agreement, the billing cycle, the renewal term and the fee for early cancellation are specified on the Order that is electronically or manually accepted by Customer. In the case that Service has been activated and is being utilized and an accepted Order does not exist, the term of the agreement is one month, the renewal term is one month, the early cancellation fee is not applicable and the billing cycle is monthly or determined by prior billing history.

Upon completion of the term, Customer acknowledges and agrees that the term will renew automatically as specified on the accepted Order unless Clarity is notified of cancellation at least 30 days prior to completion of the term.

4. Termination 
 
4.1. Termination by Customer without Cause. Customer may terminate this Agreement for any reason or no reason at all by providing Clarity notice of termination. Upon Termination by Customer without Cause, any outstanding payments for service and any early cancellation fees will become due within 15 days.

4.2. Termination by Customer with Cause. Customer may terminate this Agreement with Cause if Clarity: a) breaches any provision of this Agreement and fails, as determined by Customer, in its sole discretion, to cure such breach within five (5) days following notice to Clarity by Customer; b) fails to provide the Service for a period of five (5) days following notice to Clarity by Customer that the Service is not functioning and/or available or c) makes a material change to this Agreement that is unacceptable to Customer and fails to provide an acceptable revision within five (5) days following notice to Clarity by Customer or fails to offer to continue service under the preceding revision of this Agreement. Upon Termination by Customer with Cause, any outstanding payments for service will become due within 15 days. Any early cancellation fees will be considered waived.

4.3. Termination of Free Services. Clarity may suspend the Service and/or terminate this Agreement for any Service that Clarity provides for free at any time with no notice.

4.4. Termination by Clarity for Misuse. Clarity may suspend the Service and/or terminate this Agreement immediately following our provision of notice to Customer in accordance with the notice provision set forth in Section 12 below if Customer: a) attempts a denial of service attack on any Clarity facilities; b) attempts to hack, break or circumvent any physical or electronic security mechanisms in use by Clarity; c) is determined by Clarity in its sole discretion, to be a security risk of any kind; or d) is determined by applicable law to be using the Service to commit fraud or for an illegal purpose. If after investigation it is determined that the misuse was isolated and unintentional, for example in the case of a computer virus, the Service will be restored as soon as the situation is resolved. Upon Termination by Clarity for Misuse, any outstanding payments for service and any early cancellation fees will become due within 15 days.

4.5. Termination by Clarity for Non-Payment. Clarity may suspend the Service and/or terminate this Agreement fifteen (30) days following our provision of notice to Customer in accordance with the notice provision set forth in Section 12 below if Customer is in default of any payment obligation with respect to the Service or if any payment mechanism Customer has provided to Clarity is invalid or charges are refused for such payment mechanism and Customer fails to cure such payment obligation default within the 15 day period. Upon Termination by Clarity for Non-Payment, any outstanding payments for service and any early cancellation fees will become due within 15 days.

4.6. Termination by Clarity for Discontinuation. Clarity may suspend the Service and/or terminate this Agreement thirty (60) days following our provision of notice to Customer in accordance with the notice provision set forth in Section 12 below in the case that Clarity decides, in its sole discretion, to discontinue the type of service used by Customer on a general basis. Upon Termination by Clarity for Discontinuation, any outstanding payments for service will become due within 15 days. Any early cancellation fees will be considered waived.

4.7. Termination by Clarity without Cause. Clarity may suspend the Service and/or terminate this Agreement sixty (60) days following our provision of notice to Customer in accordance with the notice provision set forth in Section 12 below for any reason or no reason at all. Upon Termination by Clarity without Cause, any outstanding payments for service will become due within 15 days. Any early cancellation fees will be considered waived.

4.8. Survival. In the event this Agreement is terminated for any reason, any outstanding payments for service will become due within 15 days and Sections 6 through 8 of this Agreement will survive any such termination.

4.9. Data Preservation in the Event of Termination for Misuse. In the event of termination of this Agreement as set forth in Section 4.4 above, Clarity shall have no obligation to continue to store Customer data or permit Customer to retrieve the same.

4.10. Data Preservation in the Event of Suspension or other Termination. In the event of suspension or termination for reasons other than as set forth in Section 4.4 above, Clarity shall take no action to intentionally erase Customer data stored in relation to the Service for a period of thirty (60) days after the effective date of the suspension or termination. Clarity may prevent Customer from retrieving data stored in relation to the Service if any outstanding payments for service or other fees are due to Clarity. Upon resolution of all outstanding amounts due, Clarity will allow Customer to access the Services for purposes of data retrieval. Clarity may provide assistance in post termination data retrieval, but Clarity is under no obligation to do so.


5. Payment
 
5.1. Credit Card. Customer authorizes Clarity to automatically bill and charge the credit card provided, if applicable, for each billing cycle up to five days prior to the start of the billing cycle unless the Service is terminated or cancelled by either party prior to the billing cycle's start date.

5.2. Direct Billing. Payment must be received prior to the start of any billing cycle.


6. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY

EXCEPT AS EXPLICITLY PROVIDED FOR IN THIS AGREEMENT, CLARITY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CLARITY DOES NOT GUARANTEE OR WARRANTY THE DELIVERABILITY OF ANY DATA GENERATED BY, HOSTED BY OR OTHERWISE PASSED THROUGH CLARITY OWNED OR OPERATED EQUIPMENT OR COMPUTER SYSTEMS. CLIENT EXPRESSLY AGREES THAT CLARITY SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE NON-DELIVERY OF DATA GENERATED BY, HOSTED BY OR OTHERWISE PASSED THROUGH CLARITY OWNED OR OPERATED EQUIPMENT OR COMPUTER SYSTEMS.

CLARITY IS A DISTRIBUTOR AND NOT A PUBLISHER OF THE CONTENT SUPPLIED BY CUSTOMER; AS SUCH, CLARITY EXERCISES NO EDITORIAL CONTROL OVER SUCH CONTENT. Customer agrees to indemnify, defend and hold Clarity and its affiliates, partners and licensors and each of their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses arising out of or in connection with any claim arising out of (a) Customer use of the Service in a manger not authorized by this Agreement, and/or in violation of the applicable restrictions, Acceptable Use Policy, and/or applicable law and (b) Customer or Customers’ employees or representatives negligence or willful misconduct.

CUSTOMER EXPRESSLY AGREES THAT CLARITY SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES) WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT OR PURSUANT TO SOME OTHER THEORY AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE.

THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.

IN NO EVENT SHALL CLARITY'S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO CLARITY UNDER THIS AGREEMENT.

7. Confidentiality Customer shall not disclose Clarity Confidential Information during the Term of this Agreement or at any time during the three (3) year period following the end of the Term of this Agreement. As used in this Agreement, “Clarity Confidential Information” means all nonpublic information disclosed by Clarity or our partners, agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Clarity Confidential Information includes but is not limited to information about our technology, customers, business plans, nonpublic promotions and nonpublic pricing.

Clarity agrees not to disclose Customer Confidential Information during the Term of this Agreement or at any time during the three (3) year period following the end of the Term of this Agreement. As used in this Agreement, “Customer Confidential Information” means all nonpublic information disclosed by Customer or its partners, agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential.

Notwithstanding any other provision in this Agreement, Customer shall not have any confidentiality obligation to Clarity with respect to any information provided or made available by Clarity hereunder, and Clarity shall not have any confidentiality or non-use obligation to Customer hereunder with respect to any information, software application, data or content provided or made available by Customer hereunder that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (c) is received from a third party who did not acquire or disclose the same by a wrongful act; or (d) can be shown by documentation to have been independently developed by the receiving party.

If Customer and Clarity are parties to a separate non-disclosure agreement and there is a conflict between the terms of said agreement and the terms of this section, the terms of the separate non-disclosure agreement shall control.

8. Intellectual Property

Other than the use expressly set forth in this Agreement, Clarity reserves all rights to the Service and technology, systems, processes and procedures used in providing the Service.

Other than the rights and interests expressly set forth in this Agreement, Customer reserves all rights, titles and interest (including all intellectual property and proprietary rights) in and to data stored in support of the Service, including but not limited to web site files, email messages, FTP site files, offsite storage and backup data, logs, and database content. Clarity will not willfully disclose or willfully disseminate any Customer data except: (a) if designed Customer representative expressly authorizes us to do so; (b) as necessary to provide the Service to Customer, for example web site files are exposed to the public as part of a web hosting service; and (c) in response to a subpoena, search warrant, or order issued by a governmental or other regulatory body.

Clarity may use, copy, display, store, transmit, translate, rearrange or reformat, view and distribute the data stored within its facilities for technical operation purposes, including but not limited to configuring, testing and providing the Service.

9. Security

Clarity uses industry standard practices to secure and protect stored files, email messages, FTP site files, offsite storage and backup data, logs, database content and any other data stored for support of the Service. Customer acknowledges that the Internet is a volatile environment and Clarity make no guarantee to the security of stored data and Clarity is not liable for the release of stored data as the result of breach or lapse in physical or technology based security.

10. Logs and Statistics

Clarity makes every attempt but does not guarantee to keep logs of all usage activity and provides tools for Customer to download or view the logs related to Customers hosting services. Clarity makes every attempt but does not guarantee to provide tools that analyze these logs and provide statistical reports that Customer can view or download. Customer agrees to hold Clarity harmless against claims related to delayed or missing logs or statistical reports.

To preserve disk resources, logs files and statistical reports will be deleted on a periodic basis. Customer is solely responsible for obtaining the log files prior to deletion. Clarity is not liable for logs or statistical reports not retrieved by Customer prior to periodic deletion.

11. Data Integrity, Backup and Disaster Recovery

CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS ULTIMATELY RESPONSIBLE FOR DATA INTEGRITY, BACKUP AND DISASTER RECOVERY AND AGREES TO HOLD CLARITY HARMLESS AGAINST CLAIMS RELATED TO LOST OR DAMAGED DATA.

For Clarity’s convenience only, Clarity does attempt to maintain backup copies of the data stored in Clarity’s facilities. The current backup plan includes nightly onsite backups and at least weekly offsite replication of data. Clarity makes every attempt, but does not guarantee or warranty the integrity of the backup system and offsite replication process.

To assist in the uptime and recoverability of service, Clarity attempts to own and maintain redundant equipment whenever feasible. This may include routers, firewalls, internet connections, cooling systems, power systems and servers.

In the case of an equipment failure or application failure of an application provided and supported by Clarity, Clarity will use all the means at its disposal to restore the service and data as quickly as possible. For this type of outage, the current recovery target is 12 hours or less, however, Clarity does not guarantee this target.

In the case of a natural disaster or a physical security breach resulting in theft or vandalism, Clarity will use all the means at its disposal to restore the service and data as quickly as possible. For this type of outage, the current recovery target is 48 hours or less, however, Clarity does not guarantee this target.

In the case of Customer deletion or corruption of data or in the case of a Customer application failure, Clarity may charge an additional fee to assist with data recovery.

12. Notices
 
12.1. To Customer. Except as otherwise set forth herein, notices made by Clarity to Customer under this Agreement that affect Clarity customers generally will be posted on the Clarity website. Notices made by Clarity under this Agreement for Customer specifically (e.g., notices of breach and/or suspension) will be provided to Customer via the email address provided to Clarity by Customer at the time the Service was activated or provided to Clarity via e-mail or other mechanism Clarity may employ for account updates. It is Customer’s responsibility to keep e-mail addresses current and Clarity does not guarantee the delivery of e-mail notices. If a Customer e-mail is returned or ‘bounces’, Clarity will re-attempt delivery for a period of three (3) days.

12.2. To Us. For notices made by Customer to Clarity under this Agreement and for questions regarding this Agreement or the Services, you may contact Clarity as follows:

support@claritytech.com

and/or

Clarity Technology Group, Inc.
6417 Normandy Lane – Suite 100
Madison, WI 53719

12.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.


13. Other Provisions
 
13.1. Third Party Activities. If Customer authorizes, assists, encourages or facilitates another person or entity to take any action related to the subject matter of this Agreement, Customer shall be deemed to have taken the action.

13.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.

13.3. Waivers. The failure by Clarity to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect Clarity’s right to enforce such provision thereafter. All waivers by Clarity must be in writing to be effective. 13.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

13.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Clarity website, including all Additional Policies, and constitutes the entire agreement between Customer and Clarity regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between Customer and Clarity, whether written or oral, regarding such subject matter.

13.6. No Endorsement. Customer understands and acknowledges that Clarity is not certifying or endorsing, and has no obligation to certify or endorse, any of Customer’s data.

13.7. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between Customer and Clarity (or any Clarity affiliates, partners or licensors).

13.8. Governing Law. By using the Service, you agree that the laws of the State of Wisconsin, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between Customer and Clarity.