ConstantCare Terms of Service

These ConstantCare Terms of Service (“ConstantCare ToS” or “Agreement”) are made and entered into by and between McLane Intelligent Solutions, LLC. (“Provider” or “McLane”) and the business entity agreeing to these terms (“Customer” or “you”). The ConstantCare ToS are located at mclaneintel.com/constantcare-terms/. McLane and Customer may each be referred to as Party and collectively as Parties.

This Agreement is effective as of the date Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer or you personally to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer’s access to and use of the Provider’s Services, and in the event there is any conflict between the ConstantCare ToS and any Quote or Purchase Order, then the terms of the Quote or Purchase Order prevail during the Term, and thereafter unless a new Quote or Purchase Order is signed by Customer and McLane.

1. Provision of the Services.

1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, and (b) use any Software provided by Provider as part of the Services. But Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement. Before McLane will provide Services under this ConstantCare ToS, Customer must agree to a Quote or Purchase Order which specific the price, volume, and related timing.

1.1.1 build IT. McLane’s build IT includes assisting Customer with labor associated with the procurement and installation of IT Products as well as fees associated with the onboarding of new users of Customer. Such IT Products include servers, workstations, networking equipment, power protection, mobile computing devices and the software that runs on these platforms. Usually provided as a one-time project and can be either fixed-price or time and materials. These IT Products can also be delivered through HaaS which allows you to acquire equipment, software, and support services with an affordable, monthly fee.

1.1.2 manage IT. McLane’s manage IT includes all necessary resources and services that maintain, modify or repair IT Products including the services leverage industry best practice remote monitoring and management tools for proactive problem resolution and are backed-up by highly-qualified technical professionals providing help-desk, remote and on-site support. McLane may also provide HaaS under the IT services, but shall be paid by Customer based on the specific written agreement of the specific Agreed HaaS Quote.

1.1.3. cloud IT. McLane provided cloud IT, which includes the resources and services that are delivered through the Internet or agreed upon private carrier circuit and leverage available private, public, or hosted cloud platforms, services and/or applications for reducing cost, improving performance and increasing availability. These would include remote backup services, advanced email protection, compute/storage capacity, hosted services such as email or websites, and related technologies.

1.1.4 HaaS. McLane may provide HaaS Solution identified within a Quote which may include the S: the cost of the HaaS Hardware, HaaS Software and Operating Systems and the associated HaaS Implementation.

1.1.4.1 HaaS Implementation includes the labor and material cost to setup, configure, install application, and install printers or other devices. These costs may be included in the HaaS monthly cost or may be billed and executed separately.

1.1.4.2 HaaS Hardware includes the actual computer hardware inclusive of manufacturer’s warranty. All hardware liability will be limited to the manufacturer’s warranty.

1.1.4.3 HaaS Software and Operating Systems are provided by McLane under McLane’s licensing, installed, and utilized on McLane owned HaaS hardware.

1.1.4.4 An Agreed HaaS Quote may not survive the ending or termination of the ConstantCare ToS but provides for options depending on the reasons for termination as describe in the following table:

Terminating ReasonTerminating PartyHaaS AgreementConstantCare ToS
Customer breach of ConstantCare TosMcLaneCustomer option (a) Pay off and relinquish IT Hardware to McLaneEnd of ConstantCare ToS and payoff balance on ConstantCare ToS
Without causeMcLaneCustomer option (a) Pay off and relinquish HaaS Solution to McLane, or (b) pay off and relinquish HaaS Solution and Customer retains HaaS equiipment, but without a software sublicense
by McLane Hardware
End of ConstanCare ToS and payoff balance on ConstantCare ToS
Agreed HaaS Quote term endsAgreed HaaS Quote TermPay off and relinquish IT hardware to McLane or begin Rental of HaaS Solution until refresh procurement cycleNo Impact
ConstantCare ToS ends and Agreed HaaS Quote automatically endsConstantCare ToS ends without renewalCustomer option (a) Pay off and relinquish HaaS Hardware to McLane, or (b) pay off and Customer retains HaaS HardwareConstantCare ToS ends

1.1.4.4. In order to complete the Pay Off of the Agreed HaaS Quote and Relinquish Equipment to McLane, these are the steps required:

a. Determine the number of unbilled months remaining on the Agreed HaaS Quote
b. Calculate the Pay Off monthly rate by multiplying the standard monthly rate by 1.05%
c. McLane will invoice and client will pay unbilled balance for Agreed HaaS Quote as specified
d. McLane will remove hardware

1.1.4.5 In order to complete the Pay Off of the Agreed HaaS Quote and Client Retains Equipment, these are the steps required:

a. Determine the number of unbilled months remaining on the Agreed HaaS Quote
b. Calculate the Pay Off monthly rate by multiplying the standard monthly rate by 1.05%
c. McLane will invoice and Customer will pay unbilled balance for Agreed HaaS Quote as specified
d. McLane will remove all software and operating system licenses that were installed on the equipment.
e. Customer will retain possession of the hardware

1.1.4.6 Unless specified in Agreed HaaS Quote, any and all labor relating to the HaaS equipment under this ConstantCare ToS is excluded from this ConstantCare ToS. Some or all labor may be covered under a separate Agreed Quote which may include, but not limited to:

a. Implementation labor (if not otherwise included)
b. Replacement labor
c. Any labor or effort to restore a server or workstation to operable condition following a system loss
d. HaaS Solutions do not include Consumables
(this includes such items as UPS or laptop batteries and toner cartridges)

1.1.5 Backup Services. McLane may provide backup services at Customer’s sole discretion for Customer to schedule Data Backup to the Provider’s Cloud, and Customer has the obligation to verify that each Data Backup successfully completed. On a monthly basis OSP may rent customers a Local Device for Customer Data Backup and related third party software so that Customer may manage Data Backup to the Local Device. Customer agrees to be solely responsible for planning all Data Backup, scheduling, testing and confirming restores of Data Backup meet Customer’s business requirements for avoiding data loss based on Customer’s defined Disaster Recovery plan.

1.1.6 Colocation Services. McLane shall provide the following:

1.1.6.1 Redundant Power. . McLane shall provide redundant A&B power sources to all customer equipment collocated in McLane provided Data Center with UPS and generator backup.

1.1.6.2 Air Conditioning. McLane shall provide environmental monitoring to maintain proper temperatures for equipment operations.

1.1.6.5 Security. McLane Data Center Site will meet security requirements for SOC 2, PCI/DSS and HIPAA data center facility.

1.1.6.6 Connection. McLane will allow the Customer access to internet bandwidth or cross connects to Carrier services as defined in the Quote. Any charges, including one-time installation and recurring power charges will be borne by the carriers or Customers.

1.2 Accounts. Customer must have an Account to use the Services, and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. If Customer becomes aware of any unauthorized use of its password, its Account, Customer will notify Provider as promptly as possible.

1.2 New Applications and Services. Provider may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.

1.3 Modifications.

1.3.1 To the Services. Subject to Section 8.4, Provider may make commercially reasonable Updates to the Services from time to time. If Provider makes a material change to the Services, Provider will inform Point of Contact (PoC) as provided by the Customer.

1.6.2 To the Agreement. Provider may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Provider, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, please stop using the Services but the Customer shall pay the outstanding balance of agreed Quotes or Purchase Orders. Provider will post any modification to this Agreement to its website.

2. Technical Support Services.

2.2 Subject to payment of applicable support Fees under this ConstantCare ToS, Provider will provide Technical Support Services (“TSS”) to Customer during the Term as described below. Certain TSS levels include a minimum recurring Fee as described in the “Fees” definition below. If Customer downgrades its TSS level during any calendar month, Provider may continue to provide TSS at the same level and TSS Fees before the downgrade for the remainder of that month.

2.2.1 Support Request Submission.

2.2.1.1 Customer Efforts to Fix Errors. Prior to making a request to Provider, Customer will use reasonable efforts to close off applications with confidential information and be available for providing permission to login into their session, to support user testing online and to provide permission to close the ticket..

2.2.1.2 Characterization of Requests. Customer designates priority upon submission of Requests. Upon receiving a request, Provider will determine priority of the request whether the request is a P1, P2, P3 or P4 (defined in Quote with response times). Any such determination made by Provider is final and binding on Customer. Provider reserves the right to change Customer’s priority designation if Provider believes that Customer’s designation is incorrect and will inform Customer of any such change in its response to the support Request. Customer may appeal any such reclassification to Provider’s Support management for review through any available support channel.

2.2.1.3 Procedures for Acknowledgement and Resolution of Requests. When making a Request, Customer will provide all requested diagnostic information and assist Provider Support Personnel as may be required to resolve a Request.

2.2.1.4 Request Acknowledgement. Provider may respond to a Request by acknowledging receipt of the Request. Customer acknowledges and understands that Provider may be unable to provide answers to, or resolve all, Requests.

2.2.1.5 Feature Requests. If Provider deems a Request to be a Feature Request, Provider will log such Request for consideration to add to a future update or release of the Services and will consider the matter closed. Provider is under no obligation to respond to or resolve any Feature Request or to include any such Feature Request in any future update or release.

2.2.1.6 Building Applications. For clarity, Provider will not have any obligation to write or build any Applications or write code to facilitate Applications.

2.2.2. Accessing Support

2.2.2.1 Designated Support Contacts. Customer will provide first-level application support to End Users and maintain application licensing and support. Provider will provide first and second-level support to Customer for infrastructure and applications with Customer maintained application licensing/support and equipment warranty. If Customer wishes to change its Designated Contacts, it will notify Provider via the Provider for Work Support Center at least five Business Days prior to the change. If on the date these updated Guidelines were first posted Customer has more Designated Contacts than are set forth under the applicable Support level under Section 4 below, the current Contacts will continue to be allowed until the expiration of the current license term for the applicable Services under the Agreement.

2.2.2.2 Support Hours and Target Initial Response Times. Provider will process Requests during the Hours of Operation, unless otherwise indicated in these Guidelines. Any Requests received outside of the Hours of Operation will be logged and processed at the beginning of the next Business Day. Target initial response times are based on the subscribed support level. Emergency requests must be phoned into Help Desk 24x7x265 to avoid delays in assignment and remediation.

2.2.3. Maintenance. To ensure optimal performance of the Services, Provider performs periodic Maintenance. In most cases, Maintenance will have limited or no negative impact on the availability and functionality of the Services. If Provider expects planned Maintenance to negatively affect the availability or functionality of the Services, Provider will use commercially reasonable efforts to provide at least seven days advance notice of the Maintenance. In addition, Provider may perform emergency unscheduled Maintenance at any time. If Provider expects such emergency unscheduled Maintenance to
negatively affect the availability or functionality of the Services, Provider will use commercially reasonable efforts to provide advance notice of such Maintenance. Maintenance notices noted above will be provided to the PoC of Customer.

3. Payment Term

3.1. Service Fees. Provider calculates and bill fees and charges monthly. Provider may bill you more frequently for fees accrued if Provider suspects that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Service Offerings as described on the Provider Site using a credit card Provider supports. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when Provider posts updated fees and charges on the Provider Site unless Provider expressly states otherwise in a notice. Provider may increase or add new fees and charges for any existing Services by giving you at least 30 days’ advance notice. Provider may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

3.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information Provider reasonably requests to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally sufficient tax exemption certificates for each taxing jurisdiction. Provider will apply the tax exemption certificates to charges under your account occurring after the date Provider receives the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that Provider receives, after any deduction and withholding, equals the amount Provider would have received if no deduction or withholding had been required. Additionally, you will provide Provider with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

3.3 Invoice Disputes & Refunds. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within 60 days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Provider and will only be in the form of credit for the Services. Nothing in this Agreement obligates Provider to extend credit to any Party.

3.4 Delinquent Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Provider reserves the right to suspend Customer’s Account, for any late payments.

4. Customer Obligations.

4.1 Compliance. Customer is solely responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data comply with the AUP. Provider reserves the right to review the Application, Project, and Customer Data to ensure Customer’s compliance with the AUP. Customer is responsible for ensuring all End Users comply with Customer’s obligations under the AUP, the Service Specific Terms, and the restrictions in Sections 4.3 and 4.5 below.

4.2 Privacy. Customer will protect the privacy and legal rights of its End Users under all applicable laws and regulations, which includes a legally adequate privacy notice communicated from Customer. Customer may have the ability to access, monitor, use, or disclose Customer Data submitted by End Users through the Services. Customer will obtain and maintain any required consents from End Users to allow Customer’s access, monitoring, use and disclosure of Customer Data. Further, Customer will notify its End Users that any Customer Data provided as part of the Services will be made available to a third party (i.e. Provider) as part of Provider providing the Services.

4.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) distribute bulk email, unsolicited commercial email, or any form of spam or phishing emails; (b) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 4.4 below and except to the extent such restriction is expressly prohibited by applicable law); (c) use the Services for High Risk Activities; (d) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (e) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; (f) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any Application that allows End Users to place calls or to receive calls from any public switched telephone network; or (g) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State. Unless otherwise specified in writing by Provider, Provider does not intend uses of the Services to create obligations under HIPAA, and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will be responsible to encrypt all Customer Protected Health Information (as defined in HIPAA) in transit and at rest and Provider shall have no obligation to verify Customer’s compliance with its of encryption of Customer’s Protected Health Information.

4.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license instead governs Customer’s agreement with Provider for the specific included third party components of the Services, or use of the Services (as may be applicable).

4.5 Documentation. Provider may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.

4.6 Digital Millennium Copyright Act (“DMCA”) Policy. Provider provides information to help copyright holders manage their intellectual property online, but Provider cannot determine whether something is being used legally or not without their input. Provider responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. DMCA. If Customer thinks somebody is violating Customer’s or its End Users’ copyrights and wants to notify Provider, Customer can email Provider at help@mclaneintel.com and provide all pertinent information.

4.7 Application and No Multiple Accounts, Bills. Any Application must have material value independent from the Services. Provider has no obligation to provide multiple bills, or Accounts to Customer under the Agreement.

5. Suspension and Removals.

5.1 Suspension/Removals. If Customer becomes aware that any Application, Project (including an End User’s use of a Project), or Customer Data violates the AUP (https://mclaneintel.com/AUP), Customer will immediately suspend the Application or Project (if applicable), remove the applicable Customer Data or suspend access to an End User (as may be applicable). If Customer fails to suspend or remove as noted in the prior sentence, Provider may specifically request that Customer do so. If Customer fails to comply with Provider’s request to do so within 24 hours, then Provider may suspend Provider accounts of the applicable End Users, disable the Project or Application, and/or disable the Account (as may be applicable) until such violation is corrected.

5.2 Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then Provider may automatically suspend the offending, Application, Project, or End User Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If Provider suspends an End User account, Application, Project, or the Customer Account, for any reason, without prior notice to Customer, at Customer’s request, Provider will provide Customer the reason for the suspension as soon as is reasonably possible.

6. Intellectual Property Rights; Use of Customer Data; Feedback.

6.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the Parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Provider owns all Intellectual Property Rights in the Services and Software.

6.2 Use of Customer Data. Provider may use Customer Data and Applications only to provide the Services to Customer and its End Users and to help secure and improve the Services. For instance, this may include identifying and fixing problems in the Services, enhancing the Services to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost.

6.3 Customer Feedback. If Customer provides Provider feedback or suggestions about the Services, then Provider may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Provider all right, title, and interest in that feedback or those suggestions.

7. Confidential Information. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other Party of such disclosure before disclosing; and (ii) comply with the other Party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the Parties, Customer is responsible for responding to all third party requests concerning its use and its End Users’ use of the Services.

8. Term and Termination.

8.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue on a month-to-month basis until the Agreement is terminated as set forth this Agreement or an Agreed Quote.

8.2 Termination for Breach. Either Party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (iii) the other Party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Provider may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 8.2(i), (ii), and/or (iii).

8.4 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one Party to the other will immediately cease; (ii) all Fees (including Taxes) owed by Customer to Provider are immediately due upon receipt of the final electronic bill; (iii) Customer will delete the Software, any Application, Instance, Project, and any Customer Data; and (iv) upon request, each Party will use commercially reasonable efforts to return or destroy all Confidential Information of the other Party.

8.5 Data Deletion after Termination. Following termination of this Agreement, and following all payments by Customer, Customer gives Provider authorization to delete Customer’s data stored on Provider’s Cloud on the day after the remaining term based on the terms mclaneintel.com/deletion terms. Notwithstanding any provisions to the contrary, if Customer is at least 90 days delinquent in paying any fees under these ConstantCare ToS, following written notice by Provider to Customer, then Provider may delete all of Customer’s Data and Provider has no liability for any Customer Data following the written notice whatsoever.

9. Publicity. With the prior written approval of Provider, Customer is permitted to state publicly that it is a customer of the Services. If Customer wants to display Provider Brand Features in connection with its use of the Services, Customer must obtain written permission from Provider. Provider may include Customer’s name or Brand Features in a list of customers, online or in promotional materials. Provider may also verbally reference Customer as a customer of the Provider products or services that are the subject of this Agreement. Neither Party needs approval if it is repeating a public statement that is substantially similar to a previously approved public statement. Any use of a Party’s Brand Features will inure to the benefit of the Party holding Intellectual Property Rights to those Brand Features. A Party may revoke the other Party’s right to use its Brand Features under this Section with written notice to the other Party and a reasonable period to stop the use.

10. Representations.

10.1 Each Party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Provider warrants that it will provide the Services in accordance with the applicable SLA (if any).

10.3 Personal Health Information (“PHI”). Customer shall not store any PHI on any of Services, unless Customer has notified McLane at least thirty (30) days in advance of PHI upload and Customer has signed McLane’s Business Associate Agreement (“BAA”) which shall then apply to such PHI. All Customer PHI shall be encrypted while stored by Customer.

11. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, ALL SERVICES ARE PROVIDED “AS IS”, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, CUSTOMER BEARS THE ENTIRE RISK FOR USE OF SOFTWARE AND SERVICES EVEN CYBER INTRUSIONS INCLUDING, WITHOUT LIMITATION, MALWARE AND RANSOMWARE. INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. PROVIDER AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER PROVIDER NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.

12. Limitation of Liability.

12.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR PROVIDER’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

12.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR PROVIDER’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO PROVIDER DURING THE TWELVE MONTHS PRECEEDING THE EVENT GIVING RISE TO LIABILITY.

12.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a Party’s Intellectual Property Rights by the other Party, or indemnification obligations.

13. Indemnification.

13.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Provider and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer’s, or its End Users’, use of the Services in violation of the AUP.

13.2 By Provider. Provider will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Provider’s technology used to provide the Services (excluding any open source software) or (b) any Provider Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.

13.3 Exclusions. This Section 13 will not apply to the extent the underlying Allegation arises from:
a. the Indemnified Party’s breach of this Agreement;
b. modifications to the Indemnifying Party’s technology or Brand Features by anyone other than the Indemnifying Party;
c. combination of the Indemnifying Party’s technology or Brand Features with materials not provided by the Indemnifying Party; or
d. use of non-current or unsupported versions of the Services or Brand Features;

13.4 Conditions. Sections 13.1 and 13.2 will apply only to the extent:

a. The Indemnified Party has promptly notified the Indemnifying Party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the Indemnifying Party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the Indemnifying Party’s obligations under Section 13.1 or 13.2 (as applicable) will be reduced in proportion to the prejudice.
b. The Indemnified Party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the Indemnifying Party, subject to the following: (i) the Indemnified Party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action, will require the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

13.5 Remedies.

a. If Provider reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Provider may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
b. If Provider does not believe the remedies in Section 13.5(a) are commercially reasonable, then Provider may suspend or terminate Customer’s use of the impacted Services.

13.6 Sole Rights and Obligations. Without affecting either Party’s termination rights, this Section 13 states the Parties’ only rights and obligations under this Agreement for Intellectual Property Rights-related Allegations and Third-Party Legal Proceedings.

14. U.S. Federal Agency Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.

15. Lien in Favor of McLane. McLane shall be entitled to all of the rights, benefits and privileges provided by and under Section 7.209 of the Uniform Commercial Code of the State of Texas. McLane shall not be required to release and return to Customer any Data in McLane’s possession until all amounts due McLane by Customer have been paid in full.

16. Miscellaneous.

16.1 Notices. All notices must be in writing and addressed to the other Party’s legal department and primary point of contact. The notice to McLane should be sent to: legal@mclaneintel.com or 4001 Central Pointe Parkway Temple, TX 76504. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

16.2 Assignment. Customer may not assign any part of this Agreement without the written consent of Provider, which will not be unreasonably withheld. If Provider agrees to an assignment only when: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning Party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning Party has notified the other Party of the assignment. Any other attempt to assign by Customer is void.

16.3 Force Majeure. Neither Party will neither be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control. Provider shall not be liable to Customer for anything beyond Provider’s reasonable control, including, without limitation, acts of god, pandemic events, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, cyber intrusions which may cause malware, ransomware, or related problems, failure of third party software (including, without limitation, e-commerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this Agreement.

16.4 No Agency. This Agreement does not create any agency, partnership or joint venture between the Parties.

16.5 No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

16.6 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

16.7 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

16.9 Equitable Relief. Nothing in this Agreement will limit either Party’s ability to seek equitable relief.

16.10 Governing Law. All claims arising out of or relating to this agreement or the services will be governed by Texas law, excluding that state’s conflict of laws rules, and will be resolved in courts in Bell County, Texas.

16.11 Amendments. Except as set forth in Section 1.7(b), any amendment must be in writing, signed by both Parties, and expressly state that it is amending this Agreement.

16.12 Survival. The following Sections will survive expiration or termination of this Agreement: 6, 7, 8.5, 12, 13, 15, and 16.

16.13 Entire Agreement. This Agreement sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into this Agreement, neither Party has relied on, and nor either Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Provider may provide an updated URL in place of any URL in this Agreement.

16.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.

16.15 Insurance – McLane maintains insurance coverage as follows:

16.15.1 Business Automobile – commercial automobile liability insurance with a limit of liability of $1 million per occurrence and in the aggregate.

16.15.2 Commercial General Liability – commercial general liability, including products and completed operations, personal and advertising liability and property damage to property of others, with a limit of $1 million per occurrence, $2 million in the aggregate. This insurance is endorsed to add Customer as a Blanket Additional Insured, and to state that this policy is primary and non-contributory as to Customer’s insurance, if any.

16.15.3 Commercial Property – business personal property, including personal property of others and electronic data processing and media, at replacement cost value, subject to applicable deductibles. This policy also covers personal property in transit with a limit of liability of $500,000.

16.15.4 Cyber Liability – network and information security liability, as well as technology errors and omissions liability, with a limit of liability of $3 million dollars. This insurance adds Customer as a Blanket Additional Insured.

16.16 Blanket Additional Insured – Customer requests that in both the Cyber Liability and Commercial General Liability policies, McLane add it as a Blanket Additional Insured, subject to the terms and conditions of that coverage as set forth in each respective policy.

17. Definitions.

17.1 “Account” means Customer’s Provider account.

17.2 “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a Party.

17.4 “Allegation” means an unaffiliated third Party’s allegation.

17.5 “Application(s)” means any web or other application Customer creates using the Services, including any source code written by Customer to be used with the Services, or hosted in an Instance.

17.6 “AUP” means the acceptable use policy set forth here for the Services: Acceptable Use Policy

17.7 “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each Party, respectively, as secured by such Party from time to time.

17.9 “Cloud Server Backup” means a backup environment using Datto licensed technology to a McLane Cloud environment.

17.10 “Colocation Services” means the Customer uses Customer’s servers, disks, and related hardware and Provider provides under this Agreement power, connectivity, and limited support to rebooting hardware only.

17.11 “Committed Purchase(s)” have the meaning set forth in the Service Specific Terms.

17.12 “Confidential Information” means information that one Party (or an Affiliate) discloses to the other Party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Customer Data is considered Customer’s Confidential Information.

17.13 “Control” means control of greater than fifty percent of the voting rights or equity interests of a Party.

17.14 “Customer” means a company, business, or individual who enters into this Agreement.

17.15 “Customer Data” means content provided, transmitted, or displayed via the Services by Customer or its End Users; but excluding any data provided when Customer creates its general Provider account (under an email address provided under the “Provider Apps” product line).

17.16 “Documentation” means the Provider documentation (as may be updated from time to time) in the form generally made available by Provider to its customers for use.

17.17 “Emergency Security Issue” means either: (a) Customer’s or its End User’s use of the Services in violation of the AUP, which could disrupt: (i) the Services; (ii) other Customers’ or its End Users’ use of the Services; or (iii) the Provider network or servers used to provide the Services; or (b) unauthorized third party access to the Services.

17.18 “End Users” means the individuals in a Quote or Purchase Order that Customer permits to use the Services, Application, or Project.

17.19 “Fees” means the applicable fees in a Quote or Purchase Order for each Service and any applicable Taxes.

17.20 “HaaS Quote” is McLane written proposal for HaaS including all costs associated with the HaaS.

17.21 “Hardware as a Service” means those IT Products which McLane rents to Customer for use under these ConstantCare ToS based on the agreed written HaaS Quote “Agreed HaaS Quote”.

17.22 “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.

17.23 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued thereunder.

17.24 “Indemnified Liabilities” means any (i) settlement amounts approved by the Indemnifying Party; and (ii) damages and costs finally awarded against the Indemnified Party and its Affiliates by a court of competent jurisdiction.

17.25 “Instance” means a virtual machine instance, configured and managed by Customer, which runs on the Services. Instances are more fully described in the Documentation.

17.26 “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.

17.27 “IT Products” means the procurement and installation IT equipment and software by McLane for Customer.

17.28 “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.

17.29 “Office 365” means the Microsoft services which include Outlook, OneDrive, Word, Excel, PowerPoint, and other Microsoft products.

17.30 “Purchase Order” or “Agreed Quote” means any written agreement between Customer and Provider for specific Services under the ConstantCare ToS that may include volume, pricing, and specific requirements.

17.31 “Project” means a grouping of computing, storage, and API resources for Customer, and via which Customer may use the Services. Projects are more fully described in the Documentation.

17.32 “Services” means the, services provided by Provider, which may include, Colocation Services, Virtual Private Servers, and Dedicated Servers.

17.33 “Service Specific Terms” means the terms specific to one or more Services set forth here:

17.34 “SLA” means the Service Level Agreement www.mclaneintel/sla.

17.35 “Software” means any downloadable tools, software development kits or other such proprietary computer software provided by Provider in connection with the Services, which may be downloaded by Customer, and any updates Provider may make to such Software from time to time.

17.36 “Taxes” means any duties, customs fees, or taxes (other than Provider’s income tax) associated with the purchase of the Services, including any related penalties or interest.

17.37 “Term” has the meaning set forth in Section 8 of this Agreement.

17.38 “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third
Party before a court or government tribunal (including any appellate proceeding).

17.39 “Updates” means the periodic software updates provided by Provider to Customer from time to time. Updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.

These ConstantCare ToS were last modified on July 4, 2020.