Cyxtera End User License Agreement (EULA)
Updated: 02 January 2019
This Cyxtera End User License Agreement (this “EULA”) governs Cyxtera's provision of Software, Hardware, Hosted Services, Professional Services, and Support, as the same may be described in an Order Form.
USE OF ANY CYXTERA PRODUCTS AS DESCRIBED ABOVE, OR ANY OF THEIR COMPONENTS, IS EXPRESSLY SUBJECT TO AND GOVERNED BY THIS EULA. BY USING THE CYXTERA PRODUCTS, OR ANY OF THEIR COMPONENTS, YOU (LICENSEE) ACCEPT AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE CYXTERA PRODUCTS. THIS EULA DOES NOT APPLY TO COLOCATION SERVICES; SUCH SERVICES SHALL BE SUBJECT TO AND GOVERNED BY YOUR MASTER SERVICES AGREEMENT OR OTHER AGREEMENT WITH CYXTERA, AND ANY OTHER SERVICE SCHEDULES, AGREEMENTS OR OTHER DOCUMENTS REFERENCED THEREIN OR INCORPORATED THEREIN BY REFERENCE.
By using any Cyxtera products, or any of their components, you consent to receiving communications from Cyxtera electronically, and you acknowledge and agree that all agreements, notices, disclosures and other communications that Cyxtera provides to you electronically satisfy any legal requirement that such communications be in writing.
Capitalized terms used and not otherwise defined in this EULA have the following meanings:
1.1. “Agreement” means this EULA, together with any applicable Order Form.
1.2. “Authorized User” means the Licensee employees or agents who may be authorized to use the Products.
1.3. “Cyxtera” means Cyxtera Cybersecurity, Inc., a Delaware corporation, with a principal place of business at 2333 Ponce De Leon Boulevard, Suite 900, Coral Gables, FL 33134 USA.
1.4. “Deliverables” means the tangible results or output that Cyxtera delivers to Licensee in connection with the provision of Professional Services pursuant to a SOW. Deliverables does not include Technical Elements that may be embedded in or delivered with Deliverables.
1.5. “Documentation” means the then-current user manuals, training materials and technical manuals relating to the Products provided or made available to Licensee pursuant to this Agreement.
1.6. “Effective Date” is the earliest of: (a) the Billing Commencement Date for the Order Form, (b) the License Start Date, or (c) Delivery (defined in Section 4.1) of the applicable Products.
1.7. “Hardware” means the hardware specified on an Order Form and purchased by Licensee with the Software.
1.8. “Hosted Services” means the system whereby Cyxtera Software is made available for access on servers owned or controlled by Cyxtera and accessed by Licensee via the Internet as a service.
1.9. “License Start Date” is the date specified in the Order Form for when the Initial Term (defined in Section 10.1) starts. If no specific License Start date is specified, then the License Start Date will be the Effective Date.
1.10. “Licensee” is the entity identified on an Order Form as a purchaser of Cyxtera Products.
1.11. “Order Form” means all written order forms or other ordering documentations entered into by Cyxtera and Licensee, referencing this EULA and specifying the license type, pricing, license term, delivery and other specific terms and conditions applicable to the Products purchased thereunder. Order Form may include, as applicable, a SOW, “Service Order” or “quote” that is signed by the Licensee.
1.12. “Products” means, as applicable, Software, Hardware, Hosted Services, Professional Services, and Support.
1.13. “Professional Services” means services provided by Cyxtera pursuant to this Agreement other than Support and services incidental to the Hosted Services. Professional Services may be specified in an Order Form or Statement of Work (“SOW”) referencing this EULA.
1.14. “Software” means the Cyxtera software, as the same may be specified in an applicable Order Form.
1.15. “Support” means the maintenance and support services specified in the Support Terms (defined below).
1.16. “Support Terms” means Cyxtera's current maintenance and support terms which can be accessed at: https://www.cyxtera.com/legal/cyxtera-support-and-maintenance-terms-and-conditions.
1.17. “Technical Elements” means such tools, templates, know-how, data, modules, components, designs, utilities, subsets, objects, program listings, models, methodologies, programs, systems, analysis frameworks, leading practices, or specifications (including, without limitation, “Cyxtera Business Models”) that are used by Cyxtera while performing Services. For the avoidance of doubt, Technical Elements includes refinements, changes, enhancements or modifications to Technical Elements made as a result of performing Services for Licensee.
2. LICENSE GRANT
2.1. Cyxtera hereby grants to Licensee, and Licensee hereby accepts from Cyxtera, the nonexclusive, nontransferable, non-sublicensable right during the Term to install, display, operate and use the Products for Licensee's internal business purposes.
2.2. The license type(s) for the Products will be designated on the applicable Order Form. If the Order Form does not specify license types, the following rules apply:
(a) All Products are licensed for Licensee’s internal business use only.
(b) Authorized Users are limited to a reasonable number, consistent with this Agreement. Authorized Users may be limited to a set number of registered or named users.
(c) Term licenses are for 1 year only.
2.3. Licensee will ensure that all Authorized Users and any others provided access to the Products abide by the terms of this Agreement. Licensee will be and remain fully responsible for the actions or omissions of such users with respect to the Products. Cyxtera may deploy the Products with license key or other technology that prohibits use of the Products beyond the applicable license term or license parameters.
2.4. Except as expressly provided in this Agreement, Licensee will not: (a) make any copies, modifications or derivative works of the Products, (b) remove, alter, obscure or fail to reproduce in any way any proprietary notices of Cyxtera and its suppliers (including copyright and trademark notices) on any of the Products, (c) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software or Hosted Services or (d) directly or indirectly distribute, disclose, sub-license, market, rent, outsource, use on a service bureau basis, lease or transfer to any third party the Products. Except as expressly provided in this Section 2 or otherwise set forth in a written agreement signed by Cyxtera, Licensee is granted no rights or licenses whatsoever in or to the Products or any other Cyxtera products, intellectual, proprietary or personal rights. All rights and licenses not expressly granted in this Agreement are reserved by Cyxtera.
2.5. The Products contain or are provided with certain components subject to third party or “open source” licenses (“Third Party Components”). Attributions and terms relating to such components, along with copies of any applicable source code, are available upon request from Cyxtera. The terms of this Agreement may not apply to certain Third Party Components.
3. OWNERSHIP OF PRODUCTS
3.1. Cyxtera and its licensors are, and at all times will remain, the sole and exclusive owners of all right, title and interest, throughout the world (including all intellectual proprietary rights), in and to all Products, and any modifications, derivative works or copies thereof, whether made by or on behalf of Cyxtera or Licensee. Licensee receives or otherwise obtains no right, title or interest of any kind in the Products under this Agreement, other than the limited license rights expressly set forth in Section 2. Except for Hardware, Licensee obtains only a limited license right to the Products and, notwithstanding of any use of the words “purchase,” “sale” or like terms in connection with this Agreement, no ownership rights are conveyed to Licensee under this Agreement.
3.2. If Licensee provides any comments, criticisms, or other feedback relating to the Products to Cyxtera (collectively, “Feedback”), such Feedback will be deemed non-confidential and non-proprietary information for purposes of this Agreement. Cyxtera will have no obligation to Licensee or any third party with respect to such Feedback, and will be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration.
4. DELIVERY AND INSTALLATION
4.1. Delivery of Products (“Delivery”) is complete on the earliest date that: (a) the Products are made available to Licensee for use, (b) the Products are used by Licensee, or (c) physical delivery of the Products to Licensee, when applicable.
4.2. Unless otherwise specified in an Order Form, Cyxtera has no responsibility for installation or instruction on use of the Products.
5. CYXTERA SUPPORT
5.1. Cyxtera will provide Support for the Products as set forth on an Order Form and in accordance with the Support Terms.
5.2. Cyxtera has no obligation to provide Support except as specified in an Order Form. Unless otherwise specified in an Order Form, all Hosted Services include Support at no additional charge during the applicable Term.
6. SERVICE LEVEL AGREEMENT (SLA)
6.1. For Hosted Services only, and unless otherwise agreed in an Order Form, Cyxtera provides a Service Level Agreement as set out in Exhibit A.
7.1. Cyxtera is not the manufacturer of the Hardware. Any support provided in connection with the Hardware is provided as a convenience only, and Cyxtera will pass through applicable warranties from the Hardware manufacturers, as such manufacturers may permit. In no event will any such warranty survive more than 1 year from Delivery.
8. PROFESSIONAL SERVICES
8.1. If specified and agreed to in an Order Form or SOW, Cyxtera may provide certain Professional Services to Licensee. In the absence of a specific, separate written agreement governing such Professional Services in the Order Form or SOW, the terms set out in this Section 8 will apply. After execution of an Order Form or SOW for Professional Services, any change in the scope or fees for the same must be agreed upon in writing by the parties.
8.2. The fee for the Professional Services is as set forth in the Order Form or SOW. In addition, Licensee is responsible for all travel and living expenses (“Expenses”) incurred by Cyxtera’s applicable employees, agents and contractors (collectively, “Cyxtera Personnel”) while traveling to and from Licensee facilities to perform Professional Services. Unless otherwise agreed in the Order Form or SOW, Fees for Professional Services and reasonable Expenses will be billed monthly, or after the conclusion of the Professional Services.
8.3. Upon Licensee’s request, Cyxtera Personnel may perform Professional Services at Licensee’s facilities. In all such cases, Cyxtera will seek to minimize disruptions in the continuity and identity of Cyxtera Personnel assigned to work with Licensee. In addition, upon Licensee’s request and for reasonable cause, Cyxtera will remove any Cyxtera Personnel from Licensee’s premises. While performing Professional Services at non-Cyxtera locations as directed by Licensee, Cyxtera Personnel will comply with Licensee’s applicable codes of conduct and procedures (including policies regarding occupational health and safety requirements, building access, and physical and information security) which are provided in writing in advance by Licensee. In addition, Cyxtera will cooperate, as reasonably requested by Licensee, with Licensee’s other contractors or suppliers in providing services related to Professional Services.
8.4. Licensee must use reasonable efforts to: (a) provide Cyxtera Personnel with such information, co-operation and support as may reasonably be required for Cyxtera to provide the Professional Services, (b) permit Cyxtera Personnel to access such of Licensee’s systems, networks, premises and property as is necessary to perform the Professional Services, and ensure that Cyxtera is granted sufficient authorization to use any third party systems, programs, or networks necessary to provide the Professional Services, (c) ensure that all necessary consents, authorizations and licenses have been obtained so that Cyxtera’s provision of the Professional Services does not breach any statutory or regulatory provisions (of whatever jurisdiction) relating to the use of and access to personal data, and (d) ensure the health and safety of Cyxtera Personnel engaged in providing the Professional Services at Licensee’s premises.
8.5. Each Order Form or SOW may specify the Deliverables to be provided by Cyxtera. Deliverables made for Licensee as part of the engagement will become the property of Licensee at the moment such item is fixed in a tangible medium, and all rights, title and interest therein will vest in Licensee and will be deemed to be a “work made for hire” (as defined in the Copyright Act of 1976). As between Cyxtera and Licensee, Cyxtera retains all rights to the Technical Elements, provided, however, Cyxtera hereby grants to Licensee a perpetual, worldwide, nontransferable, non-exclusive, royalty-free, fully paid-up license to use, copy, modify and prepare derivative works of the Technical Elements provided to Licensee in connection with Professional Services for the limited purpose of Licensee being able to use the Deliverables for its internal purposes in connection with the related Products.
9. FEES AND PAYMENT
9.1. Following execution of an Order Form or SOW, Cyxtera may issue an invoice to Licensee that incorporates by reference the accepted Order Form and reflects the Fees to be paid by Licensee. Licensee must pay to Cyxtera the license fees (“License Fees,” which may be for Software or Hosted Services), hardware fees (“Hardware Fees”), fees for Professional Services (“PS Fees”), and Support fees (the “Support Fees”, and, together with the License Fees, Hardware Fees, and PS Fees, the “Fees”) set forth on the applicable Order Form to the address designated on the invoice. Licensee must pay all Fees in accordance with the terms of the Order Form and in each instance within 30 days following Cyxtera's invoice date. All payment obligations to pay Fees hereunder are non-cancellable, non-refundable and non-contingent. Licensee may not set off any amounts owing to Licensee against any payments owing to Cyxtera.
9.2. Fees which are not received when due will bear interest at the lesser of the maximum amount chargeable by law or 1½% per month, commencing on the date payment was due. In addition, in the event Licensee fails to timely pay any Fees or charges when due, Cyxtera may, in its discretion, suspend or terminate this Agreement following written notice that will include a 15-day cure period.
9.3. Unless otherwise specified in the Order Form, Cyxtera may, upon written notice to Licensee, increase the Fees for any Renewal Term (defined below) by no more than 5% per year over the most recent year’s Fees.
9.4. Excluding taxes based on Cyxtera's net income, Licensee is liable and responsible for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Licensee's receipt or use of the Products, whether or not Cyxtera invoices Licensee for such taxes, duties or customs fees, unless Licensee timely provides Cyxtera with a valid tax exemption or direct pay certificate showing Licensee is exempt from such payments. If Cyxtera is required to pay any such taxes, duties or customs fees, Licensee will reimburse Cyxtera for such amounts in accordance with Section 9.1, and Licensee will indemnify, defend and hold harmless Cyxtera for any such taxes, duties and customs fees and any related costs, interest and penalties paid or payable by Cyxtera with respect thereto.
10. TERM AND TERMINATION
10.1. Unless otherwise set forth on an Order Form, the term of this Agreement commences on the Effective Date and continues for 1 year after the License Start Date, if any (the “Initial Term”) and thereafter will renew automatically for successive 1-year renewal terms (each, a “Renewal Term”) unless either party provides written notice to the other party of non-renewal at least 60 days prior to such renewal date or unless earlier terminated as provided in this Agreement (the Initial Term and any Renewal Term collectively, the “Term”).
10.2. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to correct the material breach within 30 days (or such additional cure period as the non-breaching party may authorize in writing) following receipt of written notice from the non-breaching party. In addition, Cyxtera may terminate this Agreement immediately if Licensee ceases doing business in the ordinary course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within 60 days, or makes an assignment for the benefit of creditors.
10.3. Upon termination of this Agreement for any reason: (a) all payment obligations to Cyxtera for the remainder of the applicable Term will become immediately due and owing, (b) Licensee must immediately cease using the Software and Hosted Services and return all Documentation to Cyxtera, and (c) Licensee must also return to Cyxtera or destroy all copies of Cyxtera's Confidential Information in every form. Licensee must certify in writing to Cyxtera that it has performed the foregoing obligations. Sections 3, 7, 8, 10.3, 11, 12, 13, 14, 15, and 16 will survive any termination of this Agreement in accordance with their respective terms. In the event of any termination hereunder, Licensee will not be entitled to any refund of any payments made by Licensee.
11. REPRESENTATIONS AND WARRANTIES
11.1. Each party represents and warrants to the other party that: (a) it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution and delivery of this Agreement, and the performance of its obligations hereunder, do not conflict with and will not result in a breach of any other agreement to which it is a party or by which its assets are bound, and (c) this Agreement constitutes the legally valid and binding obligation of such party enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable law.
11.2. Cyxtera further represents and warrants to Licensee that the Software will function substantially in accordance with the Documentation for 30 days from delivery to Licensee when used in accordance the Documentation and terms of this Agreement. Cyxtera's sole obligation, and Licensee's sole and exclusive remedy, for a breach of the warranty contained in this Section 11.2 will be for Cyxtera, in its sole discretion, to: (a) repair or replace the Software so that it substantially conforms to the Documentation, or (b) in the event Cyxtera is unable to repair or replace the Software after exercising commercially reasonable efforts to do so, provide Licensee with a pro-rata refund of the fees paid to Cyxtera for the Software that did not substantially conform to the Documentation.
11.3. The warranty in Section 11.2 will not apply: (a) if the Products are not used in accordance with the Documentation and the terms of this Agreement, (b) if any nonconformance is caused in whole or in part by a modification to, or combination of, the Products by any party other than Cyxtera, (c) if any non-conformance is caused in whole or in part by Licensee's failure to use any new or corrected version of the Software made available by Cyxtera, (d) to any Third Party Components, and (e) to the Hardware, if applicable.
11.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, PRODUCTS ARE PROVIDED “AS IS” AND CYXTERA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO PRODUCTS OR ANY OTHER PRODUCTS OR SERVICES PROVIDED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT. CYXTERA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. CYXTERA DOES NOT WARRANT THAT PRODUCTS ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH PRODUCTS CAN OR WILL BE CORRECTED.
12.1. Each party will retain in confidence all non-public information and know-how disclosed pursuant to this Agreement, whether oral or in writing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary or confidential, including, but not limited to, the terms of this Agreement (“Confidential Information”), using at least the same standard of care used by it to protect its own confidential information, but in no event less than a reasonable standard of care. The receiving party will use the Confidential Information and copy it only to the extent required to accomplish the intent of this Agreement, and disclosure will be restricted to those individuals who have a need to know and have been made aware of and consent in writing to be bound by similar restrictions as those contained herein. For purposes of clarity, Cyxtera Confidential Information will include the Products and the Documentation.
12.2. The parties' obligations of non-disclosure under this Agreement will not apply to Confidential Information which the receiving party can demonstrate: (a) is or becomes a matter of public knowledge through no fault of the receiving party, (b) was rightfully in the receiving party's possession prior to disclosure by the disclosing party, (c) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information, or (d) is independently developed by the receiving party without reference to Confidential Information. Furthermore, the receiving party will be allowed to disclose Confidential Information of the disclosing party if that party is required by law to disclose such Confidential Information, provided that, to the extent permitted by applicable law, the party disclosing any Confidential Information pursuant to a legal duty provides advance written notice of such disclosure to the party whose Confidential Information may be disclosed.
13.1. Cyxtera will indemnify and defend Licensee against claims, demands, suits or actions (each, a “Claim”) brought against Licensee by any third party alleging that Licensee's use of the Products in accordance with the terms of this Agreement constitutes a direct infringement or misappropriation of such third party's patent claims, copyright or trade secret rights, and Cyxtera will pay damages finally awarded against Licensee with respect to such Claims.
13.2. Cyxtera's obligations set forth in Section 13.1 will not apply if the alleged infringement or misappropriation results, in whole or in part, from: (a) modifications made to the Products by anyone other than Cyxtera, (b) use of the Products other than in accordance with the Documentation and the terms of this Agreement, (c) Licensee's failure to use any new or corrected version of the Products made available by Cyxtera, (d) any Third Party Components, (e) any Licensee content or other specific materials that Licensee uses or uploads into the Products, (f) use of the Products in combination with any third party hardware, software, database or materials, or (g) Licensee's negligence or willful misconduct.
13.3. In the event of a Claim under this Section 13, Cyxtera will have the option at its expense to: (a) procure for Licensee the right to continue to use the Software that is the subject matter of the Claim, (b) replace or modify the Software that is the subject matter of the Claim to make them non-infringing, or (c) if the foregoing remedies are not commercially practical, suspend or terminate access to the infringing Software. In case of such suspension or termination, Cyxtera will provide a pro rata refund of any prepaid Fees with respect to usage of Products so suspended or terminated.
13.4. Licensee must promptly notify Cyxtera of a Claim after Licensee becomes aware thereof, and Cyxtera will have the sole right to control the defense or settlement of the Claim. Cyxtera will have no obligation to indemnify Licensee for any amounts paid in settlement of any Claim if such settlement is effected without Cyxtera’s prior consent. Licensee's failure to deliver prompt notice to Cyxtera after Cyxtera becomes aware of such matter will relieve Cyxtera of any liability to Licensee under this Section 13. Licensee will cooperate fully with Cyxtera and its legal representatives in the investigation of any potential Claim.
13.5. This Section 13 states Cyxtera's sole obligation, and Licensee's sole and exclusive remedy, with respect to any intellectual property infringement arising from, or related to, Licensee’s use of the Products.
14. LIMITATION ON LIABILITY
14.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY HEREUNDER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYXTERA'S TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) WILL IN NO EVENT EXCEED THE FEES PAID BY LICENSEE TO CYXTERA DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
During the Term and for a period of 2 years thereafter, Cyxtera may audit Licensee's facilities, records and use of the Products to determine Licensee's compliance with the terms and conditions of this Agreement. Such audits will occur during regular business hours and must be conducted in a manner designed to limit disruption to Licensee's business. In the event an audit reveals that Licensee has underpaid any fees or charges owing to Cyxtera, or that Licensee is using the Products in an unauthorized manner, Licensee must immediately pay to Cyxtera any amounts due, together with interest thereon at the lesser of the maximum amount chargeable by law or 1½% per month commencing with the date payment was due, and Licensee must reimburse Cyxtera for all costs of conducting the audit.
16.1. Governing Law; Venue. The governing law of this Agreement, and the venue for any claims arising hereunder, shall be governed by the terms of the applicable Master Services Agreement or other similar agreement between Cyxtera or an affiliate thereof and Licensee.
Nothing contained in this Section 16.1 will prevent either party from seeking injunctive relief from any court of competent jurisdiction.
16.2. Force Majeure. Neither party will be liable for any loss, damage or delay resulting from any event beyond such party's reasonable control, and delivery and performance dates will be extended to the extent of any delays resulting from any such event. Each party will promptly notify the other upon becoming aware that any such event has occurred and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing provided herein will excuse the delay of any payment that is due by Licensee to Cyxtera under this Agreement.
16.3. Complete Agreement. This Agreement is the complete and exclusive statement of the agreement between Licensee and Cyxtera relating to the use of the Products. Any purchase order or other document issued by Licensee in connection with Licensee’s purchase of the Products (a “Purchase Order”) will be placed pursuant to, and subject to, this Agreement. No terms contained in a Purchase Order issued in connection with a purchase of Products will be binding on Cyxtera.
16.4. Separate Signed Agreements. Notwithstanding Section 16.3, if Licensee has entered into a separate, written agreement signed by Cyxtera for use of the Products, the terms and conditions of such other agreement will prevail over any conflicting terms or conditions in this Agreement.
16.5. Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Cyxtera in its sole discretion in each and every instance. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
16.6. Independent Contractors. Nothing in this Agreement may be construed to create an agency, joint venture, partnership or other form of business association between the parties. Neither party has the right or authority to make any contract, representation or binding promise of any nature on behalf of the other party, and neither party may hold itself out as having such right or authority.
16.7. Updates. Cyxtera may update this EULA at any time and will notify Licensee of each update via the user interface, email notification, or other reasonable means.
16.8. No Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.
16.9. Headings. The headings in this Agreement are for purposes of reference only and are not intended to affect the meaning or interpretation of this Agreement.
16.10. Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby.
16.11. Counterparts. Order Forms may be executed in one or more counterparts, including facsimile, PDF, and other electronic copies, each of which will be deemed to be an original instrument and all of which together with this EULA will constitute a single agreement.
16.12. Notices. All official notices (including any notices regarding breach, termination, renewal, etc.) required or permitted hereunder must be in writing and must be delivered personally or sent by certified, registered mail or next day express mail or courier, postage prepaid. Any such notice will be deemed given: (a) when so delivered personally, (b) the day after, when sent by next day express mail or courier, or (c) 3 days after, when sent by certified or registered mail, to the address set forth on the applicable Order Form.
16.13. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, this Agreement.
16.14. Marketing. Cyxtera may reference Licensee's execution of this Agreement and its status as a user of the Products in marketing materials and in sales presentations. Cyxtera may use Licensee's trade names and trademarks in connection with such usage.
16.15. Regulatory Matters. The Products are subject to the export control laws of various countries, including without limit the laws of the United States. Licensee may not submit the Products to any government agency for licensing consideration or other regulatory approval without the prior written consent of Cyxtera, and will not export the Products to countries, persons or entities prohibited by such laws. Licensee will also be responsible for complying with all applicable governmental regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the Products by Licensee or its Authorized Users.
16.16. Restricted Rights. The Products are classified as “Commercial Computer Products” and “Commercial Computer Documentation” developed at private expense, contain confidential information and trade secrets of Cyxtera and its licensors, and are subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations. Contractor/Manufacturer is: Cyxtera Cybersecurity, Inc., 2333 Ponce De Leon Boulevard, Suite 900, Coral Gables, FL 33134, Attention: Legal Department.
16.17. Entire Agreement. This Agreement (including any Order Forms, schedules and attachments, which are hereby incorporated herein by reference) constitutes the final and entire agreement between the parties, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.
17. CYXTERA CONTACT
For any questions about this EULA, contact Cyxtera as follows:
Cyxtera Cybersecurity, Inc.
2333 Ponce De Leon Boulevard, Suite 900
Coral Gables, FL 33134
Attention: Legal Department
[END OF EULA TEXT – EXHIBIT A FOLLOWS]
EXHIBIT A TO CYXTERA EULA
Service Level Agreement (Hosted Services Only)
For Hosted Services only, and unless otherwise agreed in an Order Form, Cyxtera provides a Service Level Agreement as follows:
1. SERVICE LEVEL AGREEMENT
1.1. Subject to the terms of this Exhibit A, the Hosted Services will be available 99% of the Scheduled Uptime Minutes, measured on a monthly basis (the “SLA Commitment”). If Cyxtera fails to meet the SLA Commitment, Licensee will be eligible for a credit (an “SLA Credit”) calculated as set out below.
1.2. Cyxtera will issue SLA Credits to Licensee, as applicable, as follows:
(a) Within 60 days of the end of the applicable month, Licensee must note the SLA failure and request a credit in writing (email suffices), providing appropriate supporting information.
(b) Cyxtera will confirm the SLA failure and issue SLA Credits based on the actual Availability Percentage and the credit table set out below.
1.3. All SLA Credits are based upon a monthly calculation of Availability Percentage applied to applicable Amount Subject to Service Level Credits.
(a) SLA Credit Formulation and Table:
Availability Percentage=(Scheduled Uptime Minutes-Unscheduled Outage Minutes)/(Scheduled Uptime Minutes)
SLA Credit Percentage
98% to <99%
1.4. SLA DEFINITIONS:
(a) “Amount Subject to Service Level Credits” means the monthly amount due (or the calculated pro rata equivalent) for the month subject to the SLA Commitment.
(b) “Availability Percentage” means that percentage of time, measured monthly, calculated in accordance with the formula set out above.
(c) “Normal Business Hours” means M-F 5:00am – 5:00pm Eastern US time (excluding US bank holidays).
(d) “Scheduled Uptime Minutes” means the total minutes during Normal Business Hours in the applicable month.
(e) “Unscheduled Outage Minutes” means minutes during Normal Business Hours during which Cyxtera does not meet the SLA Commitment for reasons other than scheduled maintenance or due to a Force Majeure event.
1.5. GENERAL RULES WITH RESPECT TO THE SLA COMMITMENT:
(a) Hosted Services will be deemed available unless: (a) a User gets an error response to an attempt to access the Hosted Services during two or more consecutive 90-second intervals, or (b) data stored in the Hosted Services becomes inaccessible.
(b) Cyxtera will use best efforts to complete all scheduled maintenance outside of Normal Business Hours. Scheduled maintenance during Normal Business Hours must be (a) limited to no more than 15 minutes per incident, and no more than 2 incidents per month, and (b) upon no less than 3 days’ advance written notice to Licensee. If scheduled maintenance does not meet these criteria, the applicable time will be counted as Unscheduled Outage Minutes.
(c) Emergency maintenance can occur when jointly agreed to by Licensee and Cyxtera. Cyxtera will provide maximum practical notice for such maintenance. Licensee’s agreement to such request may not be unreasonably withheld.
(d) The issuance of SLA Credits will be Cyxtera’s sole financial obligation with respect to failure to meet the SLA Commitment. Credits are redeemable only against future Hosted Services Fees, and have no cash value.
(e) Cyxtera will not be liable to Licensee, or provide any SLA Credits for any failure to meet the SLA Commitment to the extent that such failure is attributable to the following: (a) acts, omissions or errors of Licensee or a third party, (b) breaches of the Agreement by Licensee, (c) failure of Licensee’s or a User’s software, hardware, systems or connections, or (d) Force Majeure.
[END OF EULA – EXHIBIT A TEXT]