THIS SERVICE AGREEMENT (the “Agreement”), is made and entered into by and between All in IT Solutions Corporation (“All in IT”), a Texas corporation, and You, as defined in Your executed All in IT Security-as-a-Service Estimate and Purchase Agreement with All in IT. By using and/or accessing the services described below, You hereby agree to all terms and conditions contained herein. Additionally, You agree to be bound by the All in IT Security-as-a-Service terms of service and end user license agreement available online at https://All in ITcorp.com/terms/All in IT-security-as-a-service-agreement.
1. Security-as-a-Service
Subject to the terms and conditions of this Agreement, All in IT shall provide You with a managed service that provides implementation, management, and support (the “Security-as-a-Service” or “Service”) of a All in IT-provided security appliance at All in IT’s discretion additional security software during the term of this Agreement.
2. Fees, Billing, and Payment
2.1 General
You will pay monthly service fees and other fees for the Security-as-a-Service to All in IT or to All in IT’s authorized reseller in the amount and in the manner set forth in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT.
2.2 Security Appliance(s)
For the purpose of providing the All in IT will provide to You one or more network security appliances (“Appliances”) that remain the property of All in IT. When new Appliances are needed during the normal course of business, any previous appliances used to provide the Service will be returned to All in IT at All in IT’s discretion. At the termination of this agreement these Appliances will be returned to All in IT.
2.3 Adjustment of Fees
It is understood that the fees for the Security-as-a-Service are based on the deployed security hardware appliances and software. If Your organization’s usage or requirements change resulting in needing a different or additional hardware appliance or software, Your Fees may be updated to reflect the new service configuration.
2.4 Payments
All payments to All in IT must be made in U.S. dollars by credit card or eCheck at https://All in ITcorp.com or by wire transfer. The Fees exclude all applicable sales, use, withholding and other taxes, and You will be responsible for payment of all taxes (other than taxes based on All in IT’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees. You will make all payments of the Fees to All in IT free and clear of, and without reduction for, any taxes, fees or duties; any such taxes imposed on payments of the Fees to All in IT will be Your sole responsibility, and You will provide All in IT with official receipts issued by the appropriate taxing authority, or such other evidence as All in IT may reasonably request, to establish that such taxes have been paid. You will indemnify and hold All in IT harmless from any such taxes or claims relating to the payment, non-payment or underpayment of such taxes. Any portion of the Fees that is not paid when due will accrue interest at two and a half percent (2.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
3. All in IT Responsibilities
3.1 Service and Security
All in IT will provide the Security-as-a-Service to You on a “commercially reasonable efforts” basis. All in IT will implement reasonable efforts to ensure a high level of service and reasonable security precautions to ensure protection and confidentiality of any of Your network appliances.
3.2 Data Privacy and Confidentiality
All in IT agrees to hold confidential all Your data in its possession exercising the same degree of care that a reasonable and careful company would exercise with similar data of its own. All in IT will limit access to Your data only to employees, contract labor, and subcontractors of All in IT, or to any affiliate or successor to the business or assets of All in IT; provided that in the event that All in IT is made aware of a potential violation of the terms of any law, any regulation, or this or any end user Agreement, All in IT may take, but is under no obligation to take, such investigative and remedial measures as each deems in its sole discretion to be appropriate, including copying and sharing data with appropriate legal authorities, providing access to data and activity information with legal authorities, removal of violating data without notice, denial or suspension of access and services, or any such other remedies or actions as may be otherwise requested by legal authorities or allegedly aggrieved parties, even in the absence of subpoena or compulsion by government authority.
4. Your Responsibilities
4.1 Client Software & License Grant
As part of the provision of the Security-as-a-Service, You may need to install client software to access and use Security Software. You will comply with any and all rights and restrictions pertaining to such client software as outlined in the software terms of use, which will be provided to you upon request before installation.
4.2 Use Restrictions
You will comply with any and all rights and restrictions granted by The software provider to licensees of Security Software and The software provider’s Online Services Use Rights for Security Software at a site that the software provider identifies. Additionally, You agree not to: (a) modify, adapt, alter, translate, or create derivative works from the client software; (b) merge the client software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer Security Software or client software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the client software; (e) use Security Software or client software to process data or provide any service bureau activity for any third party; or (f) otherwise use Security Software, or use or copy the client software, except as expressly allowed under Section 4 and its provisions.
4.3 Other Responsibilities
You will arrange for and maintain Internet communication services used to connect to the All in IT website and to connect to Security Software. You are responsible for any communication costs associated with Your Internet communications services. You further agree that You shall not place any data on the All in IT website or Security Software that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statue, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You shall defend, indemnify and hold All in IT harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein.
5. Service Features
All in IT will provision and manage Your account, subscription, settings and features associated with the Security-as-a-Service and Security Software.
6. Authorized Account Changes and Data Recovery
6.1 Authorized Contact
The contact listed in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT (“Authorized Contact”) may request account changes to Your Security-as-a-Service and Security Software. The Authorized Contact will act as the main point of contact with All in IT with regard to the Security-as-a-Service and Security Software and will provide All in IT all necessary information for the activation and continued provisioning of the Security-as-a-Service and Security Software. The Authorized Contact will act as Your sole contact with All in IT for purposes of any applicable system training and/or technical support. For security purposes, All in IT, at its sole discretion, may choose to deny any requests made by anyone else other than the Authorized Contact.
7. Support
If You purchased support with the Service, then All in IT will provide support to You during normal business hours, which are defined as 8:00 a.m. – 5:00 p.m., Monday through Friday, United States central time, excluding federal holidays in the United States and observed All in IT holidays. You may request support both during and outside normal business hours by opening a support ticket via the All in IT website at https://All in ITcorp.com/support or by calling a All in IT authorized support agent.
You agree to and accept All in IT’s incident response time expectations, Your remedies, and the method for obtaining SLA credits as outlined in the All in IT Service Level Agreement (SLA) and listed on the All in IT website at https://All in ITcorp.com/terms.
You acknowledge that in the event You experience trouble with Security Software, You are responsible for on-site cooperative testing with All in IT support to assist in the diagnosis of the trouble. All in IT is not responsible for end-user support of issues not directly related to the Security-as-a-Service or to Security Software. This includes (but is not limited to) Your operating systems, Your equipment, or Your application support. All in IT reserves the right to bill You at current hourly rates for configuration requests that are not required to provide the Security-as-a-Service as outlined herein. Additionally, All in IT is not liable for any late, delayed, or non-delivered or non-received e-mails, is not liable for any synchronization errors, and is not liable for any disruption in any of the services associated with the Security-as-a-Service or Security Software no matter what the root cause.
8. Term and Termination
8.1 Term
This Agreement shall have the initial term as set forth in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT. The term shall automatically renew on a yearly basis at the end of the initial term and thereafter, unless You notify All in IT, in writing at least ninety (90) days prior to the end of the then current term of Your intention to not to renew this Agreement. All in IT or any All in IT certified reseller reserve the right to modify the price schedule for the Security-as-a-Service at any time, and pricing for any renewal term shall be at the price as set forth on the most current price schedule in effect upon the renewal date.
8.2 Termination
A party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure the breach within ninety (90) days after receiving written notice thereof. All in IT may also terminate this Agreement, effective immediately upon written notice to You, if: (a) You breach any provision in Section 4.2; or (b) You fail to pay any portion of the Fees when due within ten (10) days after receiving written notice from All in IT that payment is past due. You may also terminate this Agreement at any time during the term by providing ninety (90) days advance notice to All in IT, in writing, of Your intention to terminate this Agreement, and by immediately paying all amounts due under this Agreement for the remainder of the term. Failure to immediately pay all amounts due under this Agreement for the remainder of the term will forfeit Your written intention to terminate.
8.3 Effects of Termination
Upon termination or expiration of this Agreement for any reason, any amounts owed to All in IT under this Agreement before such termination or expiration will be immediately due and payable, all Your rights granted in this Agreement will immediately cease to exist, and You must promptly discontinue all use of the Security-as-a-Service and Security Software, erase all copies of any client software associated with the Security-as-a-Service and Security Software from Your systems and certify in writing to All in IT that You have fully complied with these requirements. Additionally, upon termination or expiration of this Agreement, all associated data with the Security-as-a-Service and Security Software will be permanently deleted, without any obligatory notice by All in IT to You.
8.4 IP Addresses
During the term of this Agreement, You agree that All in IT may, as it determines necessary, make modifications to DNS records, zones, and Internet Protocol (“IP”) Addresses on any DNS servers managed or operated by All in IT in connection with the Services. Additionally, upon termination or expiration of this Agreement, All in IT may permanently delete any DNS records, zones, and IP Addresses on any DNS servers managed or operated by All in IT in connection with the Services, without any obligatory notice by All in IT to You. Upon expiration or termination of the Agreement, You must discontinue use of the Services and relinquish use of any and all IP addresses and/or server, host, or CNAME names or records assigned to You by All in IT in connection with Services, including pointing the DNS name servers for Your domain name(s) away from All in IT’s DNS name servers, and You must certify in writing to All in IT that You have fully complied with these requirements.
8.5 Disposition upon Termination
You acknowledge that upon the expiration or termination of this Agreement, any attempt to access the servers of the Security-as-a-Service or Security Software in connection with any of Your accounts for whom You have not paid all fees, or for whom Your rights have expired or terminated, is prohibited and unauthorized.
8.6 Failure to Comply & Unauthorized Activity
All in IT may pursue criminal investigation and/or legal action, including the pursuit of punitive damages, against You if it is determined that, but not limited to: (a) prohibited or unauthorized activity is attempted by You as described herein; (b) unlicensed use of the Software or Services is attempted by You as described herein; (c) restricted use is violated by You as described in Section 4.2; or (d) You fail to comply with Your written notification obligations in Sections 8.3 and 8.4 immediately, as determined by All in IT.
8.7 Survival
Sections 8.3 (“Effects of Termination”), 8.4 (“IP Addresses”), 8.5 (“Disposition upon Termination”), 8.6 (“Failure to Comply & Unauthorized Activity”), 8.7 (“Survival”), 9 (“Warranty and Disclaimer”), 4.2 (“Use Restrictions”), 10 (“Liability Limitation”), and 11 (“General”) will survive termination or expiration of this Agreement for any reason.
9. Warranty and Disclaimer
9.1 Services Warranty
All in IT’s role and exclusive warranty is that the Security-as-a-Service provided under this Agreement shall be performed in conformity with the standard practices in the industry. Notwithstanding the foregoing, the communication and security mechanisms implemented by All in IT and or The software provider Corporation have inherent limitations and You are solely responsible for determining that this mechanism sufficiently meets Your communication, security and operational needs.
9.2 Disclaimer
THE EXPRESS WARRANTIES IN THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, AND CLIENT SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 9.
10. Liability Limitation
IN NO EVENT WILL ALL IN IT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. ALL IN IT ALSO SHALL NOT HAVE ANY LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, OR ANY CLIENT SOFTWARE ASSOCIATED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROGRAMS OR DATA OF ANY KIND OR THE COSTS OF RECOVERING SUCH DATA. ALL IN IT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, AND CLIENT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF TOTAL FEES PAID TO ALL IN IT BY YOU DURING THE PERIOD OF ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE, AS DETERMINED BY ALL IN IT, ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. YOU ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ALL IN IT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
11. General
11.1 Proprietary Rights
The Security-as-a-Service and all worldwide Intellectual Property Rights therein, are the exclusive property of All in IT. All rights in and to the Security-as-a-Service not expressly granted to You in this Agreement are reserved by All in IT. You will not remove, alter, or obscure any proprietary notices (including copyright notices) of All in IT in associated with the Security-as-a-Service.
11.2 Assignment
You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Security-as-a-Service and Security Software) to any third party without All in IT’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
11.3 Notices
All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested), or by email (read receipt confirmed and documented or with email response from recipient that indicates acknowledgement of receipt) to the other party at the address(es) set forth beneath such party’s signature or as indicated in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT, and will be effective upon receipt or, in the case of mail, three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
11.4 Governing Law and Venue
This Agreement will be governed by the laws of the State of Texas, without reference to its conflicts of law principles. Any action or proceeding arising out of a breach by You of Section 4.2 may be brought in a federal court in the Southern District of Texas, USA or in state court in Harris County, Texas, USA and each party irrevocably submits to the jurisdiction and venue of those courts.
11.5 Dispute Resolution
Subject to Section 11.4, any action or proceeding arising from or relating to this Agreement shall be finally settled by arbitration before American Arbitration Associate (the “AAA”) pursuant to its Commercial Arbitration Rules (the “Rules”). The arbitration shall be before one (1) arbitrator appointed by the AAA pursuant to the Rules. The parties agree that arbitration must be initiated within three (3) months after the claimed breach occurred and that the failure to initiate the arbitration within the three-month period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail, return receipt requested, to all parties and to AAA. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, in a form provided by AAA, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration instituted under this subsection shall take place in Harris County, Texas, USA.
11.6 Indemnity
You agree to defend, indemnify and hold All in IT, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors (the “All in IT Indemnitees”) harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any data You store, submit, post, transmit, or otherwise make available through the Service; (b) Your use of the Service; (c) any violation by You of this Agreement; (d) any action taken by All in IT as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; (e) Your violation of any rights of another; (f) Your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the All in IT Acceptable Usage Policy, or violation of Section 11.11 (Export Control) of this Agreement; or (g) any usage of Your account, whether or not such usage is expressly authorized by You.
This means that You will pay the cost of defending the claim (including reasonable attorney fees) and any damages, awards, fines, or other amount that are imposed on the All in IT Indemnitees as a result of the claim. This also means that You cannot sue the All in IT Indemnitees as a result of All in IT’s decision to remove or refuse to process any information or data, to warn You, to suspend or terminate Your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of All in IT’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement.
You acknowledge that You are responsible for all use of the Service involving Your account, that this Agreement applies to any and all usage of Your account, and that Your obligations under this subsection include claims arising out of the acts or omissions of Your employees, any other person to whom You have given access to the Service, and any person who gains access to the Service as a result of Your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by You. If You resell the Service, the grounds for indemnification stated above also include any claim brought by Your customers or end users arising out of Your resale of the Service.
We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to You. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this subsection as we incur them.
11.7 Remedies
The parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Security-as-a-Service contains valuable trade secrets and proprietary information of All in IT, that any actual or threatened breach of Section 4.2 will constitute immediate, irreparable harm to All in IT for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach and All in IT is entitled to such relief without the need to post a bond.
11.8 Waivers
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver or any other provision or of such provision on any other occasion.
11.9 Severability
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Section 9.
11.10 Force Majeure
All in IT will not be responsible for any delays or failures caused by events, occurrences, or causes beyond the control of All in IT, as determined by All in IT, including without limitation, acts of God, natural disasters, fires, explosions, terrorist attacks, acts of utility providers, or any other possible hindrance which impairs All in IT’s provision of the Security-as-a-Service or The software provider’s provision of Security Software. Additionally, All in IT will not incur any liability on the account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused by such aforementioned events, occurrences, or causes, or as otherwise determined by All in IT. You acknowledge that Your inability to meet financial obligations from any claim of force majeure will be not be accepted, and all fees payable to All in IT will remain outstanding until paid by You to All in IT in full.
11.11 Export Control
Use of the Service and Software, including transferring, posting, or uploading data, software or other content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to any entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software and Service, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to use the Service or Software to upload or store any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
11.12 No High Risk Use
You may not use the Service in any situation where failure or fault of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, the Service in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
11.13 Electronic Contracting
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
11.14 Headings
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
11.15 Amendments
This Agreement may be amended by All in IT, and such amendments shall be immediately in effect upon All in IT’s publication of the new Agreement on its website at https://All in ITcorp.com/terms/hostedexchange (“the Online Agreement”). Any version of the Online Agreement shall assume that the terms “You” and “Your” as contained herein shall carry the same definitions as “Subscriber” and “Subscriber’s”, respectively, as defined in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT. Additionally, the Online Agreement may not enlist specifics as outlined in Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT; however, the Online Agreement version shall carry the same effect as having the attached and/or corresponding Site License Order Form and Purchase Agreement incorporated. It is Your responsibility to regularly review the Online Agreement, and Your continued use of the Security-as-a-Service, Security Software, and/or client software described herein indicates that You agree to all amendments and are fully bound to the Agreement, including any and all amendments therein.
11.16 Entire Agreement
This Agreement, and any exhibits attached to Your executed Security-as-a-Service Estimate and Purchase Agreement with All in IT, constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The terms on any purchase order or similar document submitted by You to All in IT will have no effect.
