APPROACH TECHNOLOGY, INC.
TERMS OF SERVICE
- AGREEMENT.
Your use of ATI services is governed by these TERMS OF SERVICE and the terms of your Order. When we
use the term “Agreement” in any Order or this Terms of Service, we are referring collectively to you
Order and these Terms of Services. All capitalized terms set forth in the Order have the meaning set
forth herein. These Terms of Service state the general terms applicable to all Services provided by us.
This Agreement is the complete and exclusive agreement between you and ATI regarding its subject
matter and supersedes and replaces any prior agreement, understanding, or communication, written or
oral. All capitalized terms have the meaning set forth in the Order or Terms of Service. - PARTIES TO AGREEMENT.
The parties to this Agreement are Approach Technology, Inc. (“ATI”) (“we” or “ATI”) and the customer
who orders the Services (“you” or “Customer”). - APPROACH TECHNOLOGY INC.'S OBLIGATIONS.
Contingent on ATI's acceptance of your Order, and subject to these Terms of Service, ATI agrees to
provide the Services. - YOUR OBLIGATIONS.
4.01. You agree to do each of the following: (i) comply with applicable law and the Terms of Service
(ii) pay as and when due the fees for the Services, (iii) use reasonable security precautions in light of
your use of the Services, (iv) cooperate with ATI's reasonable investigation of outages, security
problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account
information up to date; and (vi) immediately notify ATI of any unauthorized use of your account or any
other breach of security. In the event of a dispute between us regarding the interpretation of applicable
law or the Terms of Service, ATI's reasonable determination shall control.
4.02. You also agree that the timely and successful provision of the Services requires punctual and
accurate participation and good faith cooperation between you and us. In furtherance thereof, you
agree to (a) timely furnish the information and data reasonably requested by us, (b) provide access to
the personnel, designees, and agents of yours reasonably necessary or appropriate to provide the
Services, (c) designate a senior employee responsible for coordination and the delivery of the Services to
you (“Contact Person”), and (d) obtain, preserve, update, and otherwise maintain all licenses for any and
all software or other intellectual property used by you or otherwise pursuant to or in connection with
the Services.
- TERM.
5.01. The initial term for each Order begins on the date we make the Services available for your use
and continues for the period stated in the Order.
5.02. If no period is stated in the Order, then the initial term shall be one year.
5.03. Upon expiration of the initial term, the Order will automatically renew for successive renewal
terms of one month each, unless and until one of us gives the other a written notice of non-renewal
prior to the expiration of the initial term, or then-current renewal term, as applicable.
- SERVICE FEES.
6.01. ATI will charge you the fees stated in your Order. Unless you have made other arrangements,
ATI will charge you by monthly billing. Unless otherwise agreed in the Order, your billing cycle will be
monthly, beginning on the date that ATI first makes the Services available to you.
6.02. ATI may suspend all Services if payment is not made within 60 days for any reason. ATI may
charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than
1.5%).
6.03. If any amount is overdue by more than ninety (90) days, and ATI brings a legal action to collect,
or engages a collection agency, you must also pay ATI's reasonable costs of collection, including attorney
fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe
you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for
services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of
the date charged are conclusively deemed accurate. You must provide ATI with accurate factual
information to help ATI determine if any tax is due with respect to the provision of the Services, and if
ATI is required by law to collect taxes on the provision of the Services, you must pay ATI the amount of
the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize ATI to
obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you
will be applied to unpaid fees for services or refunded to you, at our option.
6.04. You shall pay directly, or reimburse us for (i) all third party expenses designed by us as
customer expenses in the Order, and (ii) all business and occupation, sale, use and other taxes imposed
on all customer expenses.
6.05. Any amounts due from you not paid within the time period specified in the applicable invoice
shall be charged interest at the rate of eighteen percent (18%) per annum, or the highest permissible
rate under applicable law, whichever is less.
6.06. If you are under a month-to-month contract, then we may increase fees at any time on fortyfive
(45) days advance written notice. If the initial term of your Agreement is longer than one month,
then we may increase your fees effective as of the first day of the renewal term that first begins fortyfive
days from the day of our written notice of a fee increase.
- SUSPENSION.
7.01. We may suspend your Services without liability if: (i) we reasonably believe that the Services
are being used (or have been or will be used) in violation of the Agreement, (ii) you don't cooperate with
our reasonable investigation of any suspected violation of the Agreement; (iii) we reasonably believe
that your Services have been accessed or manipulated by a third party without your consent, (iv) we
reasonably believe that suspension of the Services is necessary to protect our network or our other
customers, (v) a payment for the Services is overdue, or (vi) suspension is required by law.
7.02. We will give you reasonable advance notice of a suspension and a chance to cure the grounds
on which the suspension are based, unless we determine, in our reasonable commercial judgment, that
a suspension on shorter or contemporaneous notice is necessary to protect us or our other customers
from imminent and significant operational or security risk. If the suspension was based on your breach
of your obligations under the Agreement, then we may continue to charge you the fees for the Services
during the suspension, and may charge you a reasonable reinstatement fee upon reinstatement of the
Services.
- TERMINATION WITHOUT BREACH; EARLY TERMINATION FEE.
8.01. You may terminate the Agreement at the end of the term provided in the Order.
8.02. We may terminate the Agreement at any time on thirty days’ advance written notice.
- TERMINATION FOR BREACH.
9.01. We may terminate the Agreement for breach on written notice if: (i) we discover that the
information you provided to us about yourself or your proposed use of the Services was materially
inaccurate or incomplete, (ii) your payment of any invoiced amount is overdue, and you do not pay the
overdue amount within three (3) days of our written notice, (iii) you use your Service in violation of the
Terms of Service and fail to remedy the violation within ten (10) days of our written notice, (iv) you
violate the Terms of Service more than once, even if you cure each violation, or (v) you fail to comply
with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our
notice to you describing the failure.
9.02. You may terminate the Agreement for breach on written notice if: (i) we materially fail to
provide the Services as agreed and do not remedy that failure within five (5) days of your written notice
describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and
do not remedy that failure within thirty (30) days of your written notice describing the failure.
9.03. You will not have access to your data stored on the ATI cloud system during a suspension or
following termination.
- BACKUP DATA.
10.01. Unless otherwise provided in an Order, you are responsible for providing appropriate
systems, procedures, and safeguards to protect and preserve your Customer Data during the term of
this Agreement and you agree to maintain at all times one or preferably more back-ups of all Customer
Data and to take and assume full responsibility for all Customer Data that is transferred to, hosted by, or
otherwise maintained on our system and servers. You also agree that we are not responsible for any
Customer Data during and after the term of this Agreement. If we have in an Order agreed to back-up
Customer Data, we shall use commercially reasonable efforts to back-up Customer Data pursuant to
such schedule agreed upon with Customer, provided that Customer shall still remain primarily obligated
to maintain all Customer Data as provided in this Section.
10.02. We backup the ATI cloud systems on a periodic basis so that we are able to more quickly
restore the systems in the event of a failure. These backups are made on a snap-shot basis and,
therefore, capture only the information that exists on the system at the time of the backup. In addition,
we may destroy all but the most recent backup. These backups may not be available to you or, if
available, may not be useful to you outside of the ATI Cloud systems. Although the ATI cloud service may
be used as a backup service, you agree that you will maintain at least one additional current copy of
your programs and data stored on the ATI Cloud system somewhere other than on the ATI cloud system.
- UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES.
ATI is not responsible to you for unauthorized access to your data or the unauthorized use of the
Services unless the unauthorized access or use results from ATI's failure to meet its security obligations
stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any
person to whom you have given access to the Services, and any person who gains access to your data or
the Services as a result of your failure to use reasonable security precautions, even if such use was not
authorized by you. - DISCLAIMERS.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You
acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your
privacy, Confidential Information, and property. We disclaim any and all warranties not expressly stated
in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose,
and non-infringement. You are solely responsible for the suitability of the Service chosen. If you have
not made the minimum financial commitment for support and SLA coverage, the Services are provided
“AS IS.” Any voluntary services we may perform for you at your request and without any additional
charge are provided AS IS. - CONFIDENTIAL INFORMATION.
Each of us agrees not to use the other's Confidential Information except in connection with the
performance or use of the Services, as applicable, the exercise of our respective legal rights under the
Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential
Information to any third person except as follows:
13.01. to our respective service providers, agents, and representatives, provided that such service
providers, agents, or representatives agree to confidentiality measures that are at least as stringent as
those stated in these General Terms and Conditions.
13.02. to law enforcement or government agency if required by a subpoena or other compulsory
legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable
criminal law as required by law; or
13.03. in response to a subpoena or other compulsory legal process, provided that each of us agrees
to give the other written notice of at least seven days prior to disclosing Confidential Information under
this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not
reasonably feasible), unless the law forbids such notice.
- LIMITATION ON DAMAGES.
14.01. Our obligations to you are defined by this Agreement. We are not liable to you for failing to
provide the Services, unless the failure results from a material breach of this Agreement, or results from
our gross negligence or willful misconduct. The dollar credits stated in this Agreement below are your
sole and exclusive remedy for unavailability of the Services or breach of this Agreement.
14.02. Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other
for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind,
or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if
the party responsible for the damages has been advised or should be aware of the possibility of such
damages. In no event shall either of us be liable to the other for any punitive damages.
14.03. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM
AGGREGATE MONETARY LIABILITY OF ATI AND ANY OF ITS EMPLOYEES, AGENTS, SUPPLIERS, OR
AFFILIATES IN CONNECTION WITH THE SERVICES, THE AGREEMENT, AND ANY ACT OR OMISSION
RELATED TO THE SERVICES OR AGREEMENT, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF
CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF LAW, AND INFRINGEMENT) SHALL NOT EXCEED
AMOUNT OF FEES YOU PAID FOR THE SERVICES FOR THE TWELVE (12) MONTHS PRIOR TO THE
OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM (“Claim Period”).
- LIMITATION ON CLAIMS.
No claim, lawsuit, or other action (collectively “Claim”) regardless of form arising out of or related to the
use of the Services pursuant to this Agreement may be brought by Customer after the Claim Period. - INDEMNIFICATION.
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “ATI
Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged gross
negligence, willful misconduct, violation of law, failure to meet the security obligations required by the
Agreement, or violation of these Terms and Conditions, then you will pay the cost of defending the claim
(including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on
the ATI Indemnitees as a result of the claim. Your obligations under this subsection include claims arising
out of the acts or omissions of your employees, any other person to whom you have given access to the
Services, and any person who gains access to the Services as a result of your failure to use reasonable
security precautions, even if the acts or omissions of such persons were not authorized by you. - MICROSOFT SOFTWARE.
In addition to the terms of our Agreement, your use of any Microsoft® or other software is governed by
Microsoft's then license terms. If you make use of Microsoft software on the Services, which is not
provided by ATI, then you represent and warrant that you have a written license agreement, which
permits you to use the Microsoft software in conjunction with the Services. You agree that you will
provide ATI with evidence of such licensing as ATI may reasonably require prior to the commencement
of the Services, and from time to time as necessary to update the status of the license. If you fail to
provide the required evidence of licensing ATI may, at its option, either (i) suspend the Services that
were to include such software until the evidence is provided, (ii) provide the Services in reliance on ATI's
licensing agreement with the vendor, and charge you its standard fee for the use of the software until
such time as the required evidence is provided, or (iii) suspend or terminate this Agreement. You also
agree to cooperate with ATI in the event that Microsoft requests ATI’s participation in an audit of the
software services. - USE OF SERVICES.
You may not resell, transfer or assign, in whole or in part, the Services. There are no third party
beneficiaries to the Agreement. - CHANGES TO THE TERMS OF SERVICE.
We may change our Terms of Service, provided that any changes are reasonable and consistent with
applicable law and industry norms. Any changes made during the term of your Agreement will become
effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional
Order for your account that incorporates the revised Terms of Service or (iii thirty (30) days following
our notice to you describing the change. If the change materially and adversely affects you, you may
terminate the Agreement by giving us written notice of termination on such grounds no later than thirty
(30) days following the date the change became effective for your account, and we will not enforce the
change with respect to that account for thirty (30) days following the date of your notice. If you
terminate your Service because the change adversely affects you, we may decide not to enforce that
change with respect to your account and keep your Agreement in place for the remainder of the term. - NOTICES.
Your routine communications regarding the Services should be sent to your Contact Person. If you want
to give us a notice regarding termination of the Agreement for breach, indemnification, or other nonroutine
legal matter, you should send it by electronic mail and first-class United States mail to:
info@approachtechnology.com
General Counsel
Approach Technology, Inc.
1945 Yale Place East
Seattle, WA 98102
ATI's routine communications regarding the Services and legal notices will be sent to your Contact
Person or such other person you designate as your contact(s) on your account either by electronic mail,
United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that
time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day
following the time delivered. For purposes of counting days for notice periods, the Business Day on
which the notice is deemed received counts as the first day.
- NO HIGH RISK USE.
You may not at any time use the Services in any situation where failure or fault of the Services could
lead to death or serious bodily injury of any person, or to physical or environmental damage. - OWNERSHIP OF INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions,
copyrights, and other intellectual property. Any intellectual property developed by ATI during the
performance of the Services shall belong to ATI unless we have agreed with you in advance in writing
that you shall have an interest in the intellectual property. - IP ADDRESSES.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and
relinquish use of the IP addresses and server names assigned to you by ATI in connection with Services. - ASSIGNMENT.
You may not assign the Agreement without ATI's prior written consent. We may assign the Agreement in
whole or in part to an affiliate, or as part of a corporate reorganization or a sale of our business, and we
may transfer your Confidential Information as part of any such transaction. ATI may use third party
service providers to perform all or any part of the Services, but ATI remains responsible to you under
this Agreement for work performed by its third party service providers to the same extent as if ATI
performed the Services itself. - FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an
event beyond our control, such as significant failure of a part of the power grid, significant failure of the
Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action,
terrorism, or other events of a magnitude or type for which precautions are not generally taken in the
industry. - GOVERNING LAW, LAWSUITS
a. The Agreement is governed by the laws of the State of Washington, exclusive of any
Washington choice of law principle that would require the application of the law of a different
jurisdiction, and the laws of the United States of America, as applicable. Exclusive venue for all disputes
arising out of the Agreement shall be in the state or federal courts in King County, Washington, and we
each agree not to bring an action in any other venue. You waive all objections to this venue and agree
not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or
participate in any class action lawsuit against ATI or any of its employees or affiliates. Each of us agrees
that we will not bring a claim under the Agreement more than two years after the time that the claim
accrued. - If any dispute, controversy, or claim arises between us out of or in relation to this Agreement,
or the breach, termination, or invalidity thereof, both of us, by mutual negotiation, shall attempt to
come to a reasonable settlement of our dispute as soon as possible. If no settlement is reached within
thirty (30) days from the first notification of the dispute in writing by either of us, the dispute shall be
settled by binding arbitration in accordance with the American Arbitration Rules in effect as of the
effective date of this Agreement. The appointing authority shall be the American Arbitration Association
office located in Seattle, Washington, and the case shall be administered by the same authority in
accordance with its procedures for cases under the Commercial Arbitration Rules. The place of
arbitration shall be Seattle, Washington, or such other location as we both may agree. The number of
arbitrators shall be one, unless the parties cannot agree on a single arbitrator. In such event, each of us
shall choose one arbitrator, and these two arbitrators shall choose a third arbitrator who shall preside
over the proceedings. The award rendered by the arbitrators shall be final and binding upon both of us,
and judgment upon the award may be entered in any court having jurisdiction thereof. The allocation of
the expenses of the arbitration shall be effected by the arbitration decision. - CREDITS LIMITATIONS.
You are not entitled to a credit if you are in breach of this Agreement (including your payment
obligations to us) until you have cured the breach. To receive a credit, you must contact ATI within
thirty (30) days following the end of the downtime. - AGREEMENT MECHANICS
a. THESE TERMS OF SERVICE HAVE BEEN INCORPORATED IN YOUR ORDER BY REFERENCE TO
PAGE ON OUR WEBSITE. Although we may from time to time revise the Terms of Service posted on that
page, those revisions will not be effective as to an Order that we accepted prior to the date we posted
the revision, and your Order will continue to be governed by the Terms of Service posted on the
effective date of the Order. However, any amended Terms of Service will become effective on the first
day of the renewal period that follows the date that the new Terms of Service were posted by at least
thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of
Service incorporated in the latest Order posted on the effective date of the latest Order will govern the
entire account. ATI may accept or reject any Order you submit in its sole discretion. ATI's provisioning of
the Services described in an Order shall be ATI's acceptance of the Order. - An Order may be amended by a formal written agreement signed by both parties, or by an
exchange of correspondence, including electronic mail that includes the express consent of an
authorized individual for each of us. Any such correspondence that adds or modifies Services in
connection with an account established by an Order shall be deemed to be an amendment to that
Order, notwithstanding the fact that the correspondence does not expressly refer to the Order. Other
than as stated herein, the Agreement may be modified only by a formal document signed by both
parties. - If there is a conflict between the terms of any of the documents that comprise the
Agreement, the documents will govern in the following order: Order and then Terms of Service. If any
part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement
will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if
it is possible to do so consistent with the material economic incentives of the parties resulting in this
Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have
waived the right or failed to enforce the same or other rights in the past. Our relationship is that of
independent contractors and not business partners. Neither of us is the agent for the other, and neither
of us has the right to bind the other on any agreement with a third party. The captions in the Agreement
are for convenience only and are not part of the Agreement. The use of the word “including” in the
Agreement shall be read to mean “including without limitation.” All provisions that by their nature are
intended to survive expiration or termination of the Agreement shall survive expiration or termination
of the Agreement. - The Agreement may be signed in multiple counterparts, which, taken together, will be
considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg
format), and electronic signatures shall be deemed to be original signatures. - DEFINED TERMS.
The following words used in the Agreement have meanings set forth below: - “ATI cloud network” means the [___________________];
- “Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States Pacific
Daylight time, excluding federal public holidays in the United States. - “Cloud Files service” means -----------------------;
- “Cloud server fees” means the fees for your Cloud Servers for the monthly billing period in
which the failure occurred and includes monthly virtual machine instance and bandwidth charges. - “Cloud server host” means the physical server that hosts your cloud server.
- “Confidential Information” means all information disclosed by one of us to the other, whether
before or after the effective date of the Agreement, that the recipient should reasonably understand to
be confidential, including: (i) for you, all information transmitted to or from, or stored on, the ATI cloud
system, including, Customer Data, (ii) for ATI, unpublished prices and other terms of service, audit and
security reports, product development plans, data center designs (including non-graphic information
you may observe on a tour of a data center), server configuration designs, and other proprietary
information or technology, and (iii) for both of us, information that is marked or otherwise
conspicuously designated as confidential. Information that is developed by one of us on our own,
without reference to the other's Confidential Information, or that becomes available to one of us other
than through violation of the Agreement or applicable law, shall not be “Confidential Information” of
the other party. - “Content Delivery Network” means the global network of servers designed to expedite
delivery of web content by serving the content from a location in geographic proximity to the user; - “Customer Data” means software, files, programs, data, and other information of Customer.
- “Data center network” means the portion of the ATI network extending from the network
egress point of your cloud server host to the outbound port of the date center border router. - “Emergency Purchases” means material purchases by ATI that we determines in good faith
that are immediately required to resolve the IT matter and that are authorized by you. - “Junk Mail” means email that is captured by our mail filter and other email that is reported by
you to ATI as undesirable. - “Load Balancer Fees” means the fees for your ATI Load Balancer for the monthly billing period
in which the failure occurred and includes monthly instance, concurrent connections and bandwidth
charges. - “Load Balancer” means your unique load balancer instance.
- “Nonbusiness hours” means all time other than those in a Business Day.
- “On-Site” means the physical location of a customer.
- “Order” means either: (i) an executed Proposal, or (ii) any other written agreement between
you and ATI that describes the Services you are purchasing, and that is signed by you, either manually or
electronically. - “Proposal means a proposal made by use to provide Services to you. A Proposal that is
accepted by you becomes an Order - “Response Time” means that that ATI shall contact you regarding the IT matter and then begin
to resolve such IT matter, provided that ATI does not warrant that ATI shall be able to resolve the matter
within the Response Time. Unless stated otherwise, the response time will be 4 hours. Approach shall
as soon as practical confirm that it has received the request for IT matter. For example, if you contact
ATI at 5.00 pm, Approach shall contact you by 11:00 am the next business day. - “Scheduled maintenance” means maintenance that is announced at least ten business days in
advance, and that does not exceed 240 minutes in any calendar month; - “Server error response” means an HTTP return status code between 500-599;
- “Services” means those services described in the Order.
- “Terms of Service” means the Terms of Service of the date you sign the Order, as it may be
amended pursuant to Section 21 below. - “Unlimited Support” means Approach shall not charge for any IT support provided under this
Agreement. - ADDITIONAL TERMS FOR CERTAIN SERVICES
30.01. IT Hosting.
We guarantee that our data center network will be available 99.9% of the time in any given monthly
billing period, excluding scheduled maintenance. If a cloud server hosts fails, we guaranty that
restoration or repair will be complete within one hour of problem identification. If a cloud server
migration is required because of cloud server host degradation, we will notify you at least 24 hours in
advance of beginning the migration, unless we determine in our reasonable judgment that we must
begin the migration sooner to protect your cloud server data. Either way, we guaranty that the
migration will be complete within three hours of the time that we begin the migration.
If we fail to meet a guaranty stated above, you will be eligible for a credit. Credits will be calculated as a
percentage of the fees for the Servers adversely affected by the failure for the current monthly billing
period during which the failure occurred (to be applied at the end of the billing cycle).
THIS SERVICE LEVEL GUARANTY IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ATI CLOUD SERVERS
UNAVAILABILITY. NOTWITHSTANDING ANYTHING IN THIS SERVICE LEVEL GUARANTY TO THE CONTRARY,
THE MAXIMUM TOTAL CREDIT FOR THE MONTHLY BILLING PERIOD, INCLUDING ALL GUARANTIES, SHALL
NOT EXCEED 100% OF YOUR FEE FOR THAT BILLING PERIOD. CREDITS THAT WOULD BE AVAILABLE BUT
FOR THIS LIMITATION WILL NOT BE CARRIED FORWARD TO FUTURE BILLING PERIODS.
30.02. Load Balancers.
We guaranty that the load balancing service will be available 99.99% of the time in any given monthly
billing period, excluding scheduled maintenance. In the event of a Load Balancer failure, the system is
to failover to a partner device. In this event, the failover is to result in less than 30 seconds of
disruption. If we fail to meet a guaranty state above, you will be eligible for a credit. Credits will be
calculated as a percentage of the fees for the ATI Cloud Load Balancer adversely affected by the failure
for the current monthly billing period during which the failure occurred (to be applied at the end of the
billing cycle).
30.03. Cloud Files.
We guaranty that Cloud Files service will be available 99.9% of the time in a given billing cycle. If we fail
to meet this guaranty, you will be eligible to receive a credit to your account. The credit will be
calculated as a percentage of your last billed fee for the Cloud Files service, or at your option, your fee
for the current billing cycle (to be applied at the end of the billing cycle). Credits will be based on the
duration of the unavailability that exceeds the 99.9% threshold as defined below.
Unavailability means: (i) The ATI cloud network is down, or (ii) the Cloud Files service returns a server
error response to a valid user request during two or more consecutive 90-second intervals, or (iii) the
Content Delivery Network fails to deliver an average download time for a 1-byte reference document of
0.3 seconds or less, as measured by ATI Cloud's third-party measuring service. Unavailability due to
scheduled maintenance is excluded from these conditions and does not contribute towards
unavailability calculations.
- Acceptable Use Terms.
Your services may be suspended or terminated for violation of this Section
31.01. Abuse. You may not use the ATI Cloud's network or Services to engage in, foster, or promote
illegal, abusive, or irresponsible behavior, including: (a) Use of an Internet account or computer without
the owner's authorization; (b) Collecting or using email addresses, screen names or other identifiers
without the consent of the person identified (including, without limitation, phishing, Internet scamming,
password robbery, spidering, and harvesting); (c) Collecting or using information without the consent of
the owner of the information; (d) Use of any false, misleading, or deceptive TCP-IP packet header
information in an email or a newsgroup posting; (e) Use of the service to distribute software that
covertly gathers information about a user or covertly transmits information about the user; (f) Use of
the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents
to the download and installation of such software based on a clear and conspicuous notice of the nature
of the software, and (ii) the software is easily removable by use of standard tools for such purpose
included on major operating systems; (such as Microsoft's “ad/remove” tool); or (g) Any conduct that is
likely to result in retaliation against the ATI cloud network or website, or the ATI Cloud's employees,
officers or other agents, including engaging in behavior that results in any server being the target of a
denial of service attack (DoS).
31.02. Excessive Use of System Resources. You may not use any shared system provided by ATI in a
way that unnecessarily interferes with the normal operation of the shared system, or that consumes a
disproportionate share of the resources of the system. You agree that we may quarantine or delete any
data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the
potential to infect or corrupt the system or other customers' data that is stored on the same system.
31.03. Bulk or Commercial E-Mail. You must obtain the ATI Cloud's advance approval for any bulk or
commercial e-mail, which will not be given unless you are able to demonstrate, at a minimum, that: (a)
Your intended recipients have given their consent to receive e-mail via some affirmative means, such as
an opt-in procedure; (b) Your procedures for soliciting consent include reasonable means to ensure that
the person giving consent is the owner of the e-mail address for which the consent is given; (c) You
retain evidence of the recipient's consent in a form that may be promptly produced on request, and you
honor the recipient's and the ATI Cloud's requests to produce consent evidence within 72 hours of
receipt of the request; (d) You have procedures in place that allow a recipient to revoke their consent —
such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject
line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of
their consent will be implemented in 48 hours; (e) You must post an email address for complaints (such
as abuse@yourdoman.com) in a conspicuous place on any website associated with the email, you must
register that address at abuse.net, and you must promptly respond to messages sent to that address; (f)
You must have a Privacy Policy posted for each domain associated with the mailing; (g) You have the
means to track anonymous complaints; (f) You must not obscure the source of your e-mail in any
manner. Your e-mail must include the recipient's e-mail address in the body of the message or in the
“TO” line of the e-mail; and (h) You must not attempt to send any message to an email address if 3
consecutive delivery rejections have occurred and the time between the third rejection and the first
rejection is longer than fifteen days. These policies apply to messages sent using the Services, or to
messages sent from any network by you or any person on your behalf that directly or indirectly refer the
recipient to a site hosted via the Services. In addition, you may not use a third party e-mail service that
does not practice similar procedures for all its customers. These requirements apply to distribution lists
created by third parties to the same extent as if the list were created by you. The ATI Cloud may test and
otherwise monitor your compliance with its requirements, including requesting opt-in information from
a random sample of your list at any time. In addition, the ATI Cloud may block the transmission of email
that violates these provisions.
31.04. Authenticated SMTP Policy. In addition to the requirements above, you may not send email
messages of similar content through the ATI Cloud's servers to more than two-hundred and fifty (250)
recipients. Attempts to circumvent this restriction by breaking up bulk email over time, using multiple
accounts, or other means will be a violation of this restriction. The ATI Cloud may block mail that
violates this Terms of Service. In addition, your mail services may be suspended or terminated for
violation of this Terms of Service in accordance with the Terms of Service.
31.05. Mail Relays. Generally, we do not allow bulk or commercial e-mail to be sent to more than
five-thousand (5,000) users per day at a rate of 250 messages every 20 minutes. If you would like to
send more than 5,000 messages per day, please contact a member of our support team for additional
information.
31.06. Vulnerability Testing. You may not attempt to probe, scan, penetrate or test the vulnerability
of the ATI Cloud system or network or to breach the ATI Cloud's security or authentication measures,
whether by passive or intrusive techniques, without the ATI Cloud's express written consent.
31.07. Newsgroup, Chat Forums, Other Networks. You must comply with the rules and conventions
for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and
USENET groups including their rules for content and commercial postings. You must comply with the
rules of any other network you access or participate in using the ATI Cloud services.
31.08. Offensive Content. You may not publish, transmit or store on or via the ATI Cloud’s network
and equipment any content or links to any content that the ATI Cloud reasonably believes: (a)
Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or nonconsensual
sex acts; (b) Is excessively violent, incites violence, threatens violence or contains harassing
content or hate speech; (c) Is unfair or deceptive under the consumer protection laws of any jurisdiction,
including chain letters and pyramid schemes; (d) Is defamatory or violates a person’s privacy; (e) Creates
a risk to a person’s safety or health, creates a risk to public safety or health, compromises national
security or interferes with a investigation by law enforcement; (f) Improperly exposes trade secrets or
other confidential or proprietary information of another person; (g) Is intended to assist others in
defeating technical copyright protections; (h) Infringes on another person’s copyright, trade or service
mark, patent or other property right; (i) Promotes illegal drugs, violates export control laws, relates to
illegal gambling or illegal arms trafficking; (g) Is otherwise illegal or solicits conduct that is illegal under
laws applicable to you or to the ATI Cloud; or (h) Is otherwise malicious, fraudulent or may result in
retaliation against the ATI Cloud by offended viewers.
31.09. Copyrighted Material. You may not use the cloud network or Services to download, publish,
distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work
protected by copyright law unless: (a) you have been expressly authorized by the owner of the copyright
for the work to copy the work in that manner; or (b) you are otherwise permitted by established
copyright law to copy the work in that manner.
31.10. Other. You must have valid and current information on file with your domain name registrar
for any domain hosted on the ATI cloud network. You may only use IP addresses assigned to you in
connection with the ATI cloud services. You agree that if the ATI cloud IP numbers assigned to your
account are listed on an abuse database like Spamhaus, you will be in violation of these Terms of
Service, and we may take reasonable action to protect its IP numbers, including suspension and/or
termination of your service, regardless of whether the IP numbers were listed as a result of your actions.
You agree that we may quarantine or delete any data stored on a shared system if the data is infected
with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other
customers’ data that is stored on the same system. You agree that if you register a DNS record or zone
on ATI managed or operated servers or services for a domain of which you are not the registrant or
administrative contact according to the registrars WHOIS system, that, upon request from the registrant
or administrative contact according to the registrars WHOIS system, ATI may modify, transfer, or delete
such records or zones.
31.11. SLA. No credit will be available under for interruptions of service resulting violations of this
Section.