SNS Cloud VPN SERVICE AGREEMENT
This Hosted VPN Services Agreement (“Agreement”) is entered into on the date signed by or agreed to by the Customer (the “Effective Date”) between Studio Network Solutions, 2436 Northline Industrial Drive, St. Louis, MO 63043 (“Company”), and you or the entity you represent as may be identified on an Order Form (defined below) (“Customer”). This Agreement comprises these Terms and Conditions below, and any and all attachments and exhibits. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
The SNS VPN Services (defined below) are provided to you by Company. The Agreement constitutes a binding agreement between Company and Customer regarding use of the SNS VPN Services. Please read carefully through all sections of the Agreement. Your access to and use of the SNS VPN Services is subject to the Agreement and all applicable laws and Company reserves the right to terminate your access to the SNS VPN Services if you violate the Agreement. If you do not agree to the Agreement, then you may not use the SNS VPN Services. If you are acting on behalf of your employer or as an authorized agent of another entity, you hereby represent and warrant that you have the authority to bind the employer or entity to the terms of this Agreement. The Agreement may be changed by us from time to time without notice to you and the governing version will be posted at /sns-vpn-terms/. Please review the posted terms on a regular basis as your use of the SNS VPN Services will be governed by the then current Agreement.
TERMS AND CONDITIONS
1. VPN SERVICES AND SUPPORT
1.1 Company hereby grants Customer a non- exclusive, non- transferable, non- sublicensable, and limited right to access and use the SNS VPN Services as set forth in this Agreement and your order and to use Documentation. The “SNS VPN Services” shall mean Company’s hosted software solution that includes the features and functionalities described in an order form, quote, or estimate (collectively an “Order Form”), wherein each Order Form become part of this Agreement when accepted by the Customer. “Documentation” shall be any and all materials provided by Company to Customer related to instructions for using the SNS VPN Services. As part of the registration process, Customer will identify an administrative username and password/key for Customer’s master account and will be able to assign or set up usernames and passwords/keys for Customer’s Authorized Users. Company reserves the right to refuse registration of a username or cancel passwords/keys in the event either one is deemed inappropriate in Company’s sole discretion. Customer shall bear all responsibility for keeping its usernames and passwords/keys and those of its Authorized Users confidential. Company will not be liable for any loss or damage arising from Customer’s failure to keep its accounts and network information protected.
1.2 Subject to the terms hereof, Company will provide Customer with technical support services at a level selected by the Customer and included in the SNS VPN Services Fee. A description of Company’s technical support service levels can be found at: /qcomplete/.
1.3 Company may provide additional professional services that may be available to Customer for an additional fee as set forth in the listing of services (the “Services”). The Services shall include, but are not limited to the services described at the following link: /qcomplete/.
1.4 Company will implement and maintain commercially reasonable data security measures in relation to the SNS VPN Services and any support services provided. However, Customer acknowledges that no security measure or modality of data transmission over the Internet is 100% secure. Although we strive to use commercially acceptable means to protect your Customer Data, we cannot guarantee absolute security.
1.5 Except as otherwise provided in this Agreement, the SNS VPN Services shall be available to Customer at least ninety-nine percent (99%) of the time during the billing period, except for scheduled maintenance and required repairs, and except for any loss or interruption due to causes beyond the control of Company or which are not reasonably foreseeable by Company including interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.
1.6 Company reserves the right to modify the features and functionalities of the SNS VPN Services; the technical support services; and the Services offered at any time in its sole discretion. In the event Company makes any such modifications, Company will provide Customer notice by email or by posting a notice on Company’s website. The then current features and functionalities of the SNS VPN Services; the technical support services; and the Services will be those provided at the above links. Except for third-party or open source software used within in the SNS VPN Services and the rights expressly granted herein, Company retains all right, title, and interest in and to the SNS VPN Services and Documentation, and any equipment, licenses, software or other property which Company uses to provide the SNS VPN Services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the SNS VPN Services, Documentation, or any software, documentation, or data related to the Services; use the SNS VPN Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; use the SNS VPN Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the SNS VPN Services; transmit any content that Company deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy, or publicity rights, hateful, or racially, ethnically or otherwise objectionable; transmit any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; transmit any malware, software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; and transmit content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law.
2.2 During the Term (defined below), Customer bears all responsibility for all Customer Data transferred through the SNS VPN Services. “Customer Data” shall include any and all Customer data. Customer shall not transmit any personal information or personal data as those terms are defined by applicable law. Customer hereby grants to the Company a non- exclusive, worldwide, irrevocable, and royalty -free license to use Customer Data as necessary for the purpose of providing the Customer the SNS VPN Services and other Services during the Term of this Agreement.
2.3 Customer represents and warrants that Customer will use the SNS VPN Services only in compliance with this Agreement, and all applicable laws, regulations, and industry requirements. Company reserves the right, but shall have no obligation to, monitor Customer’s use of the SNS VPN Services for compliance with this Agreement, and applicable laws, regulations, and industry requirements. Failure of Customer to comply with this Agreement or applicable laws and regulations shall be considered a material breach of the Agreement and Company may terminate this Agreement in accordance with its terms.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SNS VPN Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Company may recommend preferred product, but Customer shall assume all responsibility for the Equipment Customer decides to use. Customer shall also be responsible for maintaining the security of the Equipment, usernames, passwords/keys (including but not limited to administrative and user passwords/keys) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer must notify Company of any data breach through the use of their assigned username or passwords/keys within 24 hours of the breach being identified.
2.5 Customer hereby agrees to indemnify, defend, and hold harmless Company against any claims, damages, losses, liabilities, settlements, and expenses (including without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from or is related to Customer’s actual or alleged breach of any of its obligations in this Agreement, the Customer Data, or otherwise from Customer’s unauthorized use of the SNS VPN Services or Services. Company will notify Customer promptly of any such claim, loss, liability, or demand, and will provide Customer with reasonable assistance, at Customer’s expense, in defending any such claim, loss, liability, damage, or cost.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non -public information regarding features, functionality, and performance of the SNS VPN Services and Services. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except for use in the SNS VPN Services or in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing obligations shall not apply with respect to any information that the Receiving Party can document (v) is or becomes generally available to the public, (w) was in its possession or known by its prior to receipt from the Disclosing Party, (x) was rightfully disclosed to it without restriction by a third party, (y) was independently developed without use of any Confidential Information of the Disclosing Party, or (z) is required to be disclosed by law or order or subpoena issued by a legal authority. “Confidential Information” includes, without limitation, access information, account data, end -user personal information, technical, financial or business information or data; strategies and plans; research and development plans and results; pricing information; information regarding products and services or product or service models, prototypes or samples; product schematics, documentation and manuals; proprietary methods, techniques, designs and processes; inventions, works of authorship, trade secrets and discoveries; software source code and object code; data, algorithms and flow -charts used by or for, or otherwise relating to, such software; lists of or data regarding actual or potential customers or suppliers; and any information based on or derived from any Confidential Information. For avoidance of doubt, the SNS VPN Services, Documentation and Customer Data shall also be considered Confidential Information.
3.2 Customer Data provided to Company shall be and remain the sole and exclusive property of Customer. Company shall own and retain all right, title, and interest in and to (a) the SNS VPN Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Services or technical support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the SNS VPN Services and related systems and technologies (“Analytic Information”), and Company will be free (during and after the Term hereof) to (i) use the Analytic Information to improve and enhance the SNS VPN Services and for other development, diagnostic and corrective purposes in connection with the SNS VPN Services, Services and other Company offerings, and (ii) disclose such Analytic Information solely in aggregate or other de -identified form for Company’s business purposes.
4. PAYMENT OF FEES
4.1 Customer will pay Company the fee described in the Order Form for the SNS VPN Services (the “SNS VPN Services Fee”) and for any Services in accordance with the terms herein (the “Service Fees”). The SNS VPN Services tier selected includes a fixed amount of transfer allowance and Customer agrees to pay the associated overage charge for data transfers that exceed the allowance (including, but not limited to, data transfers, monitoring, and retransmission) as identified on the Order Form or otherwise communicated to Customer in writing. Company reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Initial Term or then current Renewal Term (defined below). Company will provide Customer thirty (30) days prior notice of any upcoming fee changes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the date on the billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Customer shall be responsible for all taxes levied upon the transaction between Company and Customer for the SNS VPN Services and Services provided to Customer.
4.2 Customer will be required to provide a credit card. Billing for the service occurs at the end of a monthly cycle; customer will pay the monthly fee and any overage charges at the end of each monthly billing cycle. Any fees not paid within thirty (30) days of the invoice date or due to credit card errors are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Company may contact Customer in the event that there is an error with the credit card information. If, for any reason, Customer fails to pay the required fee within thirty (30) days of the due date or within ten days of notice by Company, Company may disable Customer’s services. If Company disables the Services, Customer may be required to pay a re-activation or a new set up fee to restore the Services.
4.3 Company utilizes a third-party payment processor and Customer agrees to the terms of use of the payment provider by signing up for the subscription payment. The third-party payment processor’s terms of use are located here: https://stripe.com/legal.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial term as specified upon ordering (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (each a “Renewal Term”, the Initial Term and Renewal Term collectively referred to herein as the “Term”), unless either party requests termination at least ten days (10) days prior to the end of the then current Term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the SNS VPN Services and Services up to and including the last day on which the SNS VPN Services and Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability.
6. WARRANTY AND DISCLAIMER
THE SNS VPN SERVICES AND SERVICES ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SNS VPN SERVICES.
TO THE MAXIMUM EXTENT ALLOWED BY LAW, COMPANY DOES NOT MAKE AND DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING (A) THE USE OR THE RESULTS OF THE USE OF THE SNS VPN SERVICES, DOCUMENTATION, OR THE SERVICES IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE, AND (B) THAT THE SNS VPN SERVICES OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SNS VPN SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE.
7. INDEMNITY
Company shall defend, indemnify, and hold Customer harmless from liability to third parties resulting from infringement by the SNS VPN Services of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not pre -approve in writing. The foregoing obligations do not apply with respect to portions or components of the SNS VPN Services that are (a) not supplied by Company, (b) made in whole or in part in accordance with Customer specifications, (c) modified after delivery by Company, (d) combined with other products, processes, or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the SNS VPN Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the SNS VPN Services is held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (x) replace or modify the SNS VPN Services such that it is non- infringing, provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the SNS VPN Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the SNS VPN Services.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON SOLELY ATTRIBUTABLE TO COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SNS VPN SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
9. MISCELLANEOUS
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event that Customer issues a purchase order containing any terms of purchase, the terms of the Agreement shall be the exclusive terms governing the SNS VPN Services.
9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
9.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered, when receipt is electronically confirmed, if transmitted by facsimile or email, the day after it is sent, if sent for next day delivery by recognized overnight delivery service, and upon receipt, if sent by certified or registered mail, return receipt requested.
9.6 This Agreement shall be governed by the laws of the State of Missouri without regard to its conflict of laws provisions. Each party agrees that any claim hereunder shall be under the jurisdiction of the state and federal courts in St. Louis, Missouri.
9.7 Neither party shall be liable, nor deemed to be in default hereunder, for any delay in performance or failure to perform under this Agreement that results directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, pandemics, accidents, fires, explosions, employee strikes or other work interruptions, earthquakes, floods, failure of transportation, or any other cause beyond the reasonable control of such party.
9.8 The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement.
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