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Surround365 Terms and Conditions

This Managed Service Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between BinaryTree.com Inc., a Delaware corporation (“Binary Tree”) with offices at 3088 Route 27 – Suite 1, Kendall Park, NJ 28824, and the individual or company identified in the Subscription (“Customer”). Customer and Binary Tree can also be referred to herein collectively as the “Parties” and individually as a “Party.” If Customer is an affiliate of a Binary Tree customer that has a signed, effective Master Service Agreement with Binary Tree, Customer hereby agrees to be bound to all terms and conditions of such Master Service Agreement as part of this Agreement.

BY SIGNING UP TO ACCESS THE SURROUND365 SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.

In consideration of the mutual promises contained in this Agreement, Binary Tree and Customer agree as follows:

1.  Service Description

Binary Tree runs a managed service intended for users, IT operations and development teams which includes the features and functionality described at the Surround365 website (http://www.binarytree.com/Surround365) (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). The Service is operated on Binary Tree’s hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users” or “Users”) to access and use the Service via the communication mechanisms indicated in Section 6. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)

2.  Subscription and Subscription Date

As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by Binary Tree, (b) a written Customer purchase order via Order Forms for the Service accepted by Binary Tree, (c) another written agreement for the Service executed by both Binary Tree and Customer, or (d) an order for the Service by Customer through an authorized Binary Tree reseller/partner. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written Order Form, (iii) the date both Customer and Binary Tree have executed a written agreement, or (iv) the date that an authorized Binary Tree reseller/partner has commenced the Service on behalf of a Customer.

3.  Term

  • This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 7 or 14 below, continue for (i) the number of months or year(s) specified in the Subscription as measured from the first day of the first calendar month after the Subscription Date, or (ii) if no period is specified in the Subscription, the end of the calendar month following the calendar month in which Customer gives notice of termination pursuant to this Section 3 (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
  • If Customer is using the Service under an Essentials, Plus, Complete or other fee-based pricing plan (each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non-paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other.

 4.  Pricing and Fees

  • Unless the parties agree otherwise in a separately executed written agreement for a Paying Plan or other customized Paying Plan, fees for the Service (“Fees”) shall be based on the pricing published in the price list on the Order Form (reference Appendix A) - subject to change at the sole discretion of Binary Tree, a copy of which may be displayed on the Site as of the Subscription Date for the Initial Period. All or certain of the Fees may be calculated on the basis of the number of Users. For purposes of that determination and this Agreement, the term “User” refers to an Authorized User that is a Microsoft Office 365 licensee within the Customer tenant(s), as determined by Binary Tree on a calendar month basis.
  • Customer must be authorized to use the payment method Customer enters when creating a billing account. Customer authorizes Binary Tree to charge Customer for the Service using that payment method and for any paid feature of the Service that Customer chooses to sign up for or use during the Service Period of this Agreement. As indicated in a Subscription, Binary Tree may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) on a recurring time- or usage-based basis.
  • Customer must keep all information in Customer’s billing account current. Customer can access and modify Customer’s billing account information through the Site and may change its payment method at any time. If Customer notifies Binary Tree to stop using Customer’s previously designated payment method and fails to designate an alternative, Binary Tree may immediately suspend use and access to the Service. Any notice from Customer changing its billing account will not affect charges Binary Tree submits to Customer’s billing account before Binary Tree reasonably could act on Customer’s request.
  • Binary Tree will notify Customer in advance, either through the Service or by email pursuant to Section 19(b), if Binary Tree changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
  • Payments for all accounts registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date unless otherwise agreed-to by the Parties in writing. If any payment is not made when due, Binary Tree may immediately suspend use and access to the Service.
  • All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
  • If this Agreement is terminated early by Customer pursuant to Section 7 or 14(a), or by Binary Tree pursuant to Section 14(b)(ii), Customer will not be obligated to pay the Fees following the effective date of termination, with the following exception: Customer will be obligated to pay any remaining unbilled Fees for a Complete or other customized Paying Plan that included a Migration-as-a-Service component, based on the “Migration as a Services Fees” pricing published in the price list on the Order Form (reference Appendix A). In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
  • Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Binary Tree to collect any amount not paid when due, Customer will pay or reimburse Binary Tree’s costs of collection (including, without limitation, any attorneys’ fees and court costs).  

5.  Taxes

All Fees are exclusive of any applicable sales or other taxes or similar fees imposed by any government authority. Customer will (a) pay or reimburse all such taxes and fees (including any interest or penalties), if any, due, based on or measured by amounts payable by Customer under this Agreement (excluding taxes based on Binary Tree’s net income) or (b) furnish Binary Tree with evidence acceptable to the government authority to sustain an exemption therefrom.

6.  Service Use and Use Rights

Subject to this Agreement, Binary Tree will make the Service available to Customer and Authorized Users during the Service Period and Binary Tree hereby grants to Customer, during the Service Period, a nonexclusive, nontransferable, limited right to enable Authorized Users to access and use the Service through the interface and the Site, and to access and use Binary Tree’s technical and operations documentation and Agents (as defined in Section 9) in support thereof, solely for Customer’s internal, business use. Customer acknowledges that its and each Authorized User’s access and use of the Service are subject to Binary Tree’s Privacy Policy, which is published at the Site and incorporated into this Agreement by reference. Binary Tree may delegate the performance of certain portions of the Service to third parties, but will remain responsible to Customer for delivery thereof. Binary Tree may in its discretion modify, enhance or otherwise change the Service from time to time, provided that, if Customer is under a Paying Plan, such change does not materially adversely affect the Service as it existed at the Subscription Date.

7. Service Level Commitment

Binary Tree Responsibilities.  Binary Tree shall make the Service available in accordance with the SURROUND365 Service Level Agreement attached as Appendix B.  Binary Tree shall provide the Service in accordance with applicable laws and government regulations.

8.  Support and Enhancement Requests

  • Subject to this Agreement, if Customer is under a Paying Plan, Binary Tree will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed, Binary Tree will use commercially reasonable efforts to respond to such support requests within 24 hours. Binary Tree may delegate the performance of certain portions of the Support to third parties, but will remain responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable skill, care and diligence, Binary Tree will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Service through an authorized Binary Tree reseller/partner, such reseller/partner shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such reseller/partner.
  • Binary Tree may, but shall have no obligation to, consider Customer's suggestions or requests regarding new functionality or features of the Service ("Enhancement Requests"). All modifications proposed or requested in an Enhancement Request shall be the sole and exclusive property of Binary Tree. Binary Tree may, in its sole discretion include such modifications in a future version of the Service, but Binary Tree's acceptance and consideration of an Enhancement Request shall not obligate Binary Tree to include in any version of the Service any modifications proposed or requested in such Enhancement Request.

9.  Agents; Third-Party Content

Binary Tree will make various application program interfaces (APIs), agents, libraries and other materials available at the Site or through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and Binary Tree has no liability with respect to any other uses of the Agents, and (c) certain of the Agents may include third-party content that is subject to open source license terms that may expand or limit Customers’ rights to use such content. Customer agrees to review any electronic documentation that accompanies the Agents or is identified in a link provided to Customer to determine which portions of the Agents are open source and are licensed under open source license terms. To the extent any such license terms require that Binary Tree provide Customer the rights to copy, modify, distribute or otherwise use any open source software in the Agents that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license terms shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such third-party terms (including open source license terms), as applicable, and Binary Tree has no liability with respect to third-party content under this Agreement.

10.  Restrictions and Limitations

  • Binary Tree has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure, and each hosting provider for the Service has or will have similar contractual obligations to Binary Tree. Binary Tree does not represent, and, except as expressly set forth herein and the Privacy Policy, expressly disclaims, that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements.
  • Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and Service necessary to enable Authorized Users’ access and use of the Service through the interface, including, without limitation all computer hardware and software and Internet access.
  • Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. Binary Tree has no liability with respect to any use or misuse of such identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
  • Without limiting the generality of Sections 10 and 12, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at Binary Tree’s discretion, an unreasonable or disproportionately large load on Binary Tree’s infrastructure; (iii) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (iv) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (v) modify or create any derivative work based upon the Service or Technology; (vi) engage in, permit or suffer to continue any copying or distribution of the Service or Technology; (vii) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (viii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (ix) remove, obscure or alter any proprietary notice related to the Service or Technology; or (x) engage in, permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, Binary Tree will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.

11.  Rights Granted to Binary Tree

  • In order to provide and support the Service for the benefit of Customer, Customer hereby grants Binary Tree a worldwide, non-exclusive, royalty-free license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive the data, text, software, audio, video, images or other content that Customer and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service (collectively “Customer Data”). Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, Binary Tree may: (i) use Customer Data to refine, supplement or test Binary Tree’s product and service offerings; (ii) include aggregated and anonymized Customer Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable Customer Data following any termination of this Agreement for use in connection with the foregoing.
  • During the Service Period, Binary Tree may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.

12.  Proprietary Rights

  • Subject only to the limited rights expressly granted in this Agreement, as between Customer and Binary Tree, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Binary Tree assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
  • As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Binary Tree in connection with the performance of the Service or the Support, or made available by Binary Tree to Customer, any Authorized User or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, Service and technology made available through the Site, the Agents, the Service interface and any Binary Tree branded or co-branded websites (including sub-domains, widgets and mobile versions).
  • The Service and Technology constitute or otherwise involve valuable intellectual property rights of Binary Tree and all right, title and interest in and to the foregoing shall, as between the parties, be owned by Binary Tree. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Binary Tree reserves all rights to the Service and Technology not otherwise expressly granted herein.

13.  Confidentiality

  • As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information shall include, but shall not be limited to, trade secrets, knowhow and other proprietary information relating to products, operations, customers, suppliers and other business information and the terms and existence of this Agreement. The foregoing use and confidentiality restrictions shall not apply to information that is (i) or becomes publicly available through no fault of the receiving Party; (ii) obtained lawfully from a third party not bound to obligations of secrecy to the disclosing Party; (iii) developed by or for a Party independent of and without reliance on Confidential Information, and (iv) within a Party’s possession prior to the Effective Date of this Agreement that was not received under an obligation to keep the same confidential. .
  • Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.

14.  Service Termination

  • This Agreement may be terminated by a non-breaching party: (a) if the other party materially breaches any material obligation of this Agreement, which breach is not cured within thirty (30) days after notice of breach is delivered in writing to the breaching party from the non-breaching party; (b) the other party materially breaches any material obligation of this Agreement, which breach is not capable of being cured within thirty (30) days; or (c) the other party (i) makes an assignment for the benefit of creditors, (ii) permits the appointment of a trustee or receiver of all or a substantial part of its assets, (iii) is generally unable to meet its obligations when due, or (iv) institutes voluntary proceedings in bankruptcy or insolvency, permits involuntary institution of such proceedings against it, or commits any other act of bankruptcy.
  • In addition to the rights under Section 14(a), Binary Tree may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 6, 9 or 10, (ii) in order to comply with applicable laws or regulations, (iii) if Customer defaults in the timely payment of any amounts due Binary Tree under a Paying Plan, or (iv) if Customer has purchased the Service through a reseller/partner that is no longer an authorized reseller/partner of Binary Tree.

15.  Effect of Expiration or Early Service Termination

  • Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to Binary Tree with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to Binary Tree any and all Confidential Information of Binary Tree in the possession or control of Customer; (iii) subject to Section 15(b), Binary Tree will return to Customer any and all Confidential Information of Customer in its possession or control; (iv) Binary Tree will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination; and (v) Customer will pay to Binary Tree any amounts payable for Customer’s and Authorized User’s use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 4. This Section 15 and Sections 4, 5, 10 through 13 and 16 through 18 shall survive the expiration or earlier termination of this Agreement.
  • Binary Tree’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges the duration of the retention of such information is determined by the terms of the applicable Free Plan or Paying Plan. In addition, Customer acknowledges that although information in the Service database will be deleted from its transaction servers, Binary Tree may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Binary Tree’s customary procedures and policies. In addition, Binary Tree may retain certain information as provided in Section 11(a)(iii).

16.  Representations and Indemnities

  • Customer hereby represents and warrants to Binary Tree that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
  • Customer hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
  • Customer agrees to defend, indemnify and hold harmless Binary Tree and its employees, contractors, agents, officers and directors, from and against any and all third party claims, damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
  • Binary Tree agrees to defend, indemnify and hold harmless Customer, if under a Paying Plan, from and against any and all damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) paid or incurred in connection with any third party claims that the Services or Technology infringe on the U.S. copyright, U.S. patent, U.S. trade secret or other intellectual property right of any kind whatsoever of a third party; provided that Customer gives Binary Tree prompt written notice of the claim, allows Binary Tree to direct the defense and settlement of the claim, and cooperates with Binary Tree as necessary, at Binary Tree’s expense, for defense and settlement of the claim. If the Service or Technology becomes, or, in Binary Tree’s opinion is likely to become, the subject of such a claim, Binary Tree shall have the right to obtain for Customer the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees paid for such Service and Technology (less a reasonable charge for the period during which Customer has had available to it the use of such Service and Technology). Notwithstanding the foregoing, Binary Tree will have no liability for any infringement claim to the extent it (1) is based on modification of the Service or Technology other than by Binary Tree; (2) results from failure of Customer to use any updated version of Service or Technology provided by Binary Tree to Customer; (3) is based on the combination or use of the Service or Technology with any other software, program or device not provided by Binary Tree if such infringement would not have arisen but for such use or combination; (4) results from compliance by Binary Tree with designs, plans or specifications furnished by Customer; or (5) results from Customer’s operation of the Service or Technology in a manner that is inconsistent with its intended use. THE FOREGOING STATES BINARY TREE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT. IF UNDER A FREE PLAN, CUSTOMER ACKNOWLEDGES THAT THIS SECTION 16(d) SHALL BE DEEMED DELETED AND OF NO FORCE OR EFFECT.
  • The parties agree that the indemnifying party under Section 16(c) and 16(d), as applicable, shall have the sole right and discretion to settle, negotiate, compromise or otherwise dispose of the claim, provided that the indemnified party, may, at its option participate in such defense at its sole option and expense, but not control the defense of the claim and all negotiations for settlement, compromise or other disposal of the claim. Each party agrees to promptly notify the other party of a claim or suit that is subject to the indemnification obligations under this Agreement and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. The indemnifying party may not enter into (i) any non-monetary settlement, (ii) any settlement that requires the indemnifying party to admit fault, or (iii) any settlement that does not contain a release of the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed.
  • EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Binary Tree DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF Binary Tree UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).

17.   Limitations of Liability

  • IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY SEEKING DAMAGES UNDER THIS AGREEMENT FOR PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR EXPENSES ARISING OUT OF THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LIABILITY.
  • UNDER NO CIRCUMSTANCES WILL BINARY TREE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. BINARY TREE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS AND DIRECT DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS EXCEEDING THE LESSER OF (I) ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000) OR (II) AN AMOUNT EQUAL TO AGGREGATE FEES PAID UNDER THIS AGREEMENT TO BINARY TREE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY UNDER THE AGREEMENT.
  • THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

18.  Miscellaneous

  • Without the prior written consent of the other Party, this Agreement shall not be assignable or transferable by either Party; provided, however, no consent of Customer shall be required in connection with a sale of assets of Binary Tree, in connection with a change of control of Binary Tree, or to the successor or assignee or transferor of all or substantially all of Binary Tree’s business to which this Agreement relates. When duly assigned in accordance herewith, this Agreement shall be binding on and inure to the benefit of each party’s successors and assignees.
  • Binary Tree may send Customer, in electronic form, information about the Service, additional information and any information the law requires Binary Tree to provide. Customer acknowledges and agrees that Binary Tree may provide notices to Customer by email at the address Customer specified in its Subscription or by access to a website that Binary Tree identifies. Notices emailed to Customer will be deemed given and received when the email is sent. If Customer does not consent to receiving notices electronically, Customer and its Authorized Users must stop using the Service. (Please note that these provisions relate to the customer business relationship and are distinct from marketing and similar emails covered by the “Opt-Out” provisions of the Privacy Policy.) Customer may provide legal notices to Binary Tree by email to legal.notices@binarytree.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Binary Tree, Inc., Attn: Legal Notice, 3088 Route 27, Suite 2, Kendall Park, NJ 08824, or such other address as Binary Tree may direct from time to time on the Site. Customer must specify in all such notices that the notice is being given under this Agreement.
  • Federal Government End Use Provisions. Binary Tree provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Binary Tree to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
  • In connection with this Agreement, Customer will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Service, including the transfer and processing of Customer Data.
  • The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
  • No liability shall result to Customer or Binary Tree from any delay in performance or from nonperformance caused by acts of God, fire, flood, explosion, war, action of governmental authority or any other circumstances of a similar nature beyond the reasonable control of the party affected; provided that such nonperformance could not have been prevented by reasonable precautions (“Force Majeure”). The party affected by the Force Majeure shall use its commercially reasonable efforts to remove such cause or causes and shall promptly notify the other party of the existence of such Force Majeure and its probable duration. In the event of a delay in Binary Tree’s performance hereunder caused by Force Majeure which continues for thirty (30) days or more, either party may terminate this Agreement for no fault of the non-performing party immediately upon written notice of termination to the other party. In the event of termination under this Section 18(f), neither party will be permitted to seek damages related to the Force Majeure circumstance giving rise to the termination and Customer shall pay for all Binary Tree Services rendered up through the termination date.
  • This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to its provisions concerning conflicts or choice of law. English shall be the governing language of this Agreement. It is specifically agreed that this Agreement shall not be covered by nor construed in accordance with the terms of the United Nations Convention on Contracts for the International Sales of Goods. FOR ALL CLAIMS ARISING FROM THE AGREEMENT, THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY. If any provision of this Agreement is held to be unenforceable, such term or provision shall not affect the other provisions of this Agreement, and such provision shall be deemed modified to the extent necessary to render it enforceable. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party's right to exercise such right or any other right in the future. The section headings herein are provided for convenience only and shall have no substantive effect on the construction of this Agreement. No provision of this Agreement shall be construed in favor of or against a party solely for the reason that such party drafted the provision.
  • Customer acknowledges and agrees that this Agreement does not convey to Customer any right, title or interest in or to any trademarks or trade names of Binary Tree or its affiliates. Customer shall not use or attempt to register any trademarks or trade names of Binary Tree or its affiliates, or any trademarks or trade names confusingly similar thereto.
  • Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Binary Tree promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Service available to any third party other than Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
  • This Agreement, inclusive of the Subscription and Privacy Policy, is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Any affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each party and delivered to the other party.
  • The parties to this Agreement are independent contractors and nothing contained in this Agreement shall be construed to place the parties in the relationship of employer and employee, partners, principal and agent, or joint venturers.
  • Nothing contained in this Agreement is intended or will be construed to confer upon any person or entity (other than the parties hereto and their respective indemnitees) any rights, benefits or remedies of any kind or character whatsoever, and no person or entity will be deemed a third-party beneficiary under or by reason of this Agreement.
  • All disputes or claims arising out of or relating to this Agreement shall be resolved in accordance with the provisions of this Section. First, the disputing party shall give the other party written notice of the controversy or claim in accordance with this Agreement (the Notice). The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days following the delivery of the Notice by negotiations between senior executives of the parties who have settlement authority. If the controversy or claim has not been resolved within thirty (30) days following delivery of the disputing party’s Notice, then the parties may submit the dispute or controversy to a court of competent jurisdiction. Nothing in this Section shall be deemed to prohibit or restrict either party from (a) seeking injunctive relief or (b) seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this Agreement relating to a party’s Confidential Information, data or intellectual property.

Copyright Binary Tree, Inc. 2017 - 34.56953 - Terms of Use - Privacy Policy

 

Appendix A – SURROUND365 Service Order Form

 

This Order Form, effective __________________ (“Effective Date”) by and between [CUSTOMER], a __________________, U.S.A. corporation (“Customer”), with offices at_________________, and BinaryTree.com Inc., a Delaware, U.S.A. corporation (“Binary Tree”), with offices at 3088 Route 27 – Suite 1, Kendall Park, NJ 28824. This Order Form is issued pursuant to and is subject to the Terms of Service and Agreement dated ______, 2017 between Customer and Binary Tree (“Agreement”). Capitalized terms used in this Order Form but not otherwise defined have the meanings set forth in the Agreement.

Fees:

Top Level Name

Product Name

Annual Pricing

Notes

 

SURROUND365

ESSENTIALS  

$4.00 per user

Month to month subscription including basic end user CBT based content and basic Office 365 tenant monitoring and reporting self-services

 

PLUS  

$8.00 per user

Month to month subscription including a 24/7 Service desk for all end user training and incident response services and comprehensive Office 365 tenant monitoring, reporting and management services

 

PLUS-ANNUAL

$6.80 per user

An annual subscription price discount with the same features listed above

 

COMPLETE

CUSTOM

An annual subscription service that includes all features in PLUS, and adds optional Office 365 licensing and Migration-as-a-Service options for on-premise data migration services to the Office 365 cloud.

 

 

 

 Customer shall pay to Binary Tree the following Fees for use of the SURROUND365 Service under this Order Form:   

SURROUND365 Essentials Fee:

  • $4.00 per User per month for the Service on a month to month basis (Initial Period) for _____ (x) Users (“Designated Users”)
  • $4.00 per User per month for the Service for a twelve (12) month term for the number of Designated Users not set up in the first twelve (12) months

SURROUND365 Plus Fee:

  • $8.00 per User per month for the Service on a month to month basis (Initial Period) for _____(x) Users
  • $6.80 per User per month for a twelve (12) month term (Initial Period) for _____(x) Users; renewal terms of twelve (12) months will be charged at $6.80 per User per month

SURROUND365 Complete Fees:

  • Base fee: $6.80 per User per month for a twelve (12) month term (Initial Period) for _____(x) Users; renewal terms of twelve (12) months will be charged a base fee at $6.80 per User per month
  • o Microsoft Office 365 License Fees – annual subscription term (if applicable):
    • Microsoft Office 365 E1: $8.00 per User per month for _____(x) Users
    • Microsoft Office 365 E3: $20.00 per User per month for _____(x) Users
    • Microsoft Office 365 E5: $35.00 per User per month for _____(x) Users
  • o Migration-as-a-Service Fees:
    • Domino to Office 365: [tbd] per month
    • Exchange to Office 365: [tbd] per month

Customer shall agree to the following Policies for use of the Service under this Order Form:

SURROUND365 Terms of Use

 

Appendix B – SURROUND365 Service Level Agreement

1.  Introduction

Capitalized terms used but not defined in this SLA will have the meaning assigned to them in the Agreement. This SLA applies to the Binary Tree SURROUND365 Service listed herein (a “Service” or the “Service”), but does not apply to separate consulting services made available with or connected to the Service or to any on-premises Binary Tree software that is part of any services.

If Binary Tree does not achieve and the Service Levels for each Service as described in this SLA, then the Customer may be eligible for a credit towards a portion of the Customer’s monthly service fees. Binary Tree will not modify the terms of the Customer’s SLA during the initial term of the Customer’s subscription; however, if the Customer renews the subscription, the version of this SLA that is current at the time of renewal will apply throughout the Customer’s renewal term. Binary Tree will provide at least 90 days’ notice for adverse material changes to this SLA.

2.  General Terms

Definitions. The following terms shall have the meanings set forth below.

"Applicable Monthly Period" means, for a calendar month in which a Service Credit is owed, the number of days that the Customer is a subscriber for a Service.

"Applicable Monthly Service Fees" means the total fees actually paid by the Customer for a Service that are applied to the month in which a Service Credit is owed.

“Cloud Services Center” refers to the SURROUND365 Cloud Services Center service which provides escalated technical support for unresolved incidents escalated from the SURROUND365 Service Desk.

“Customer Data” means all electronic data or information submitted by Customer to the Service.

"Downtime" is defined for each Service in the Service Specific Terms below. Downtime does not include Scheduled Downtime. Downtime does not include unavailability of a Service due to limitations described below and in the Service Specific Terms.

"Error Code" means an indication that an operation has failed, such as an HTTP status code in the 5xx range.

"External Connectivity" is bi-directional network traffic over supported protocols such as HTTP and HTTPS that can be sent and received from a public IP address.

"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.

“Order Form(s)” means the ordering documents for purchases hereunder, including addenda thereto, that are signed or electronically accepted by Binary Tree and Customer from time to time. Order Forms shall be substantially in the format specified in Appendix A attached hereto. Each mutually-signed Order Form shall be deemed incorporated herein by reference.

“Provision of Service” Binary Tree shall make the Service available to Customer pursuant to this Agreement and the applicable Order Forms during each subscription term.

"Scheduled Downtime" means periods of Downtime related to network, hardware, or Service maintenance or upgrades. Binary Tree will publish notice or notify the Customer at least five (5) days prior to the commencement of such Downtime.

Service” refers to the managed service intended for user, IT operations and development teams which includes the features and functionalities described at the Site (http://www.binarytree.com/Surround365)

"Service Credit" is the percentage of the Applicable Monthly Service Fees credited to the Customer following Binary Tree’s claim approval.

“Service Desk” refers to the SURROUND365 Service Desk that provides Incident support and end user software coaching services 24 / 7.

“Service Desk Fees” refers to the portion of the total SURROUND365 monthly FEES directly applicable to the Service Desk component. This cost breakdown is determined at the sole discretion of Binary Tree.

"Service Level" means the performance metric(s) set forth in this SLA that Binary Tree agrees to meet in the delivery of the Service.

“Site” refers to the online SURROUND365 management interface located at: http://manage.surround365.com/

“Site Fees” refers to the portion of the total SURROUND365 monthly FEES directly applicable to the Site. This cost breakdown is determined at the sole discretion of Binary Tree.

“Specification(s)” means the documentation and/or (online or offline) user guide for the Service, available as set forth on an Order Form, as updated from time to time.

"Support Window" refers to the period during which a Service feature or compatibility with a separate product or service is supported.

“Authorized Users” or “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 Binary Tree at Customer’s request). Users include employees, consultants, contractors and agents of Customer.

“User Subscriptions” Unless otherwise specified in the applicable Order Form, (i) Service are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.

3.  Claims

For Binary Tree to consider a claim, the Customer must submit the claim to customer support at Binary Tree including all information necessary for Binary Tree to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Downtime; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of the Customer’s attempts to resolve the Incident at the time of occurrence.

Binary Tree must receive the claim by the end of the calendar month following the month in which the Incident occurred. For example, if the Incident occurred on February 15th, Binary Tree must receive the claim and all required information by March 31st.

Binary Tree will evaluate all information reasonably available to it and make a good faith determination of whether a Service Credit is owed. Binary Tree will use commercially reasonable efforts to process claims during the subsequent month and within forty-five (45) days of receipt.

The Customer must comply with the Agreement to be eligible for a Service Credit. If Binary Tree determines that a Service Credit is owed to the Customer, Binary Tree will apply the Service Credit to the Customer’s Applicable Monthly Service Fees.

If the Customer purchased more than one Service, then the Customer may submit claims pursuant to the process described above as if each Service were covered by an individual SLA. For example, if the Customer purchased both SURROUND365 Plus and Power365 Mail and during the term of the subscription an Incident caused Downtime for both services, then the Customer could be eligible for two separate Service Credits (one for each Service), by submitting two claims under this SLA.

If more than one Service Level for a specific Service is not met because of the same Incident, the Customer must choose only one Service Level under which to make a claim based on the Incident.

4.  Service Credits

Service Credits are the Customer’s sole and exclusive remedy for any performance or availability issues for any Service under the Agreement and this SLA. The Customer may not unilaterally offset the Customer’s Applicable Monthly Service Fees for any performance or availability issues.

Service Credits apply only to fees paid for a specific Service. The Service Credits awarded in any billing month for a specific Service will not, under any circumstance, exceed the Customer’s monthly service fees for that Service, as applicable, in the billing month.

If the Customer purchased a Service from a Binary Tree reseller/partner, the Customer must request a service credit directly from the Customer’s Binary Tree reseller/partner.

5.  Limitations

This SLA and any applicable Service Levels do not apply to any performance or availability issues:

  • Due to factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at the Customer’s site or between the Customer’s site and our data center);
  • That result from the use of Service, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
  • Caused by the Customer’s use of a service after Binary Tree advised the Customer to modify the Customer’s use of the service, if the Customer did not modify the Customer’s use as advised;
  • During or with respect to preview, pre-release, beta or trial versions of a Service, feature or software (as determined by Binary Tree);
  • That result from the Customer’s unauthorized action or lack of action when required, or from the Customer’s employees, agents, contractors, or vendors, or anyone gaining access to our network by means of the Customer’s passwords or equipment, or otherwise resulting from the Customer’s failure to follow appropriate security practices;
  • That result from the Customer’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or the Customer’s use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
  • That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
  • That result from the Customer’s attempts to perform operations that exceed prescribed quotas or that resulted from the throttling of suspected abusive behavior; and
  • Due to the Customer’s use of Service features that are outside of associated Support Windows. 

6.  SLA Details – SURROUND365 Service Desk

Binary Tree will provide the Service Desk in a professional and workmanlike manner as described in the Agreement. In doing so, Binary Tree will take the necessary steps to meet the service level criteria defined in the below listed table:

Category

Service Level Agreement

Average Speed of Answer (ASA)

Binary Tree will answer all appropriately-routed calls in an average of less than 30 seconds during any full monthly period, with the time period commencing when the call reaches Binary Tree’ phone system

Call Abandon Rate

Binary Tree’s call abandon rate in any full monthly period will be less than 5% on average for properly-routed calls which involve requests within the scope of Support Services provided by Binary Tree under this Agreement (“In Scope”)

First Contact Resolution of Properly Routed Calls

Binary Tree will resolve or adequately address at least 85% of properly routed, In Scope calls upon and during first contact when measured as an average of all properly routed, In Scope calls received during any full monthly period.

Overall Resolution of Properly Routed Calls

For 95% of properly routed In Scope calls, Binary Tree will resolve or adequately address issues presented on those calls within 48 hours when measured as an average of all properly routed In Scope, calls received during any full monthly period.

 

Binary Tree will re-perform the non-conforming Services to correct any deficiencies identified.  Upon receipt of proper notice from the Customer documenting such deficiencies, in the event Binary Tree remains unable to provide the Services in accordance with any of the pre-defined Service Level standards for two (2) consecutive months following such notice, Binary Tree will credit back 50% of the Service Desk Fees paid from the delivery of the Service Desk for the previous month.

7.  SLA Details – SURROUND365 Site

Binary Tree will ensure that the Site shall be available to Customer at least 99.90% of the time during any calendar month (“Availability Commitment”). Notwithstanding the foregoing, Binary Tree may interrupt service for routine maintenance purposes for up to eight (8) hours per month (“Scheduled Downtime”).

The following Service Levels and Service Credits are applicable to Customer’s use of SURROUND365 Site:

SITE AVAILABILITY MONTHLY

SERVICE CREDIT % of Monthly Site Fees

>=99.90 %

0%

99.89 – 99.00 %

10%

98.99 – 98.00 %

20%

<97.99 %

25%

 

“Site Platform Unavailability” is defined as the number of minutes in which the Site, or any core functionality of the Site, is not available, but does not include any unavailability that is caused solely by: (a) Scheduled Maintenance; (b) acts or omissions of Customer or its Authorized Users in violation of the Agreement; (c) failures within Customer’s internal network or of Customer-controlled connectivity to the Site; (e) Microsoft issue or (f) force majeure events as described in Section 8.5 of the Agreement.

Correction of Defects

In addition to meeting the Availability Commitment set forth above, Binary Tree will correct problems with the Site (“Problems”) in accordance with the following terms. The Customer will report Problems with the Site either via the Service Desk or an email address (surround365@binarytree.com). All support services will be provided remotely. All Problems will be categorized in accordance with the category definitions below.

“Major Problem” A Major Problem arises when the Site is unable to function properly in a production environment due to a failure of the Site to conform to the documentation and/or specifications.

“Minor Problem” A Minor (production environment) Problem arises when a Problem exists with the Site that materially impacts Customer’s business operations, although the Site is substantially operational.

“Informational Problem” An Informational Problem arises when a Problem exists with the Site that does not materially impact Customer’s business operations.

“On Time Incidents” refer to Response and Restore times that meet or exceed the Response and Restore targets as defined in the Helpdesk/TAC Case Priority: Response & Restore Performance Objectives table.

Response” means the time it takes from Customer’s initial email or telephone call notification of the Problem until Binary Tree responds to the appropriate Customer personnel.

“Restore” means the time it takes for Binary Tree to provide a correction or modification of the Site that corrects the Problem.

Classification

SLA

Example

First Response

Resolution time

Major

100%

Service Inaccessible

2 hours

24 hours

Minor

95%

Feature not working as expected, or data is erroneous

8 hours

48 hours

Informational

90%

Data is outdated

24 hours

72 hours

 

Site Disaster Recovery

 Binary Tree’s disaster recovery plan shall provide, at a minimum, that (a) the core functions of the Site will come back online and be available within twenty-four (24) hours after the declaration of a disaster; and (b) the Site will be fully functional and operating in accordance with this Service Level Agreement within five (5) days after a declaration of a disaster.