Please read the terms of this End User License Agreement carefully. This EULA is a binding agreement between Customer and Otava, LLC (“Otava”) and applies on the Effective Date to Customer’s use and receipt of the Services. Customer and Otava may each be referred to herein as, a “Party” and collectively, the “Parties”.
means the information provided to Otava or otherwise received by Otava during sign‑up, purchase, or administration of the Services for Customer. Administrator Data includes the Automated Alerts. Administrator Data does not include Customer Data, Feedback, or Usage Data.
means the Otava Acceptable Use Policy available at otava.com, as amended by Otava from time to time.
” means the Services Start Date.
means, collectively and individually, (a) that(those) individual(s) to whom Customer expressly assigns the Buyer role in the Portal.
means more than three Service interruptions to a Service component provided under this EULA, with each such interruption consisting of one consecutive hour or more of Downtime and totaling eight or more hours of Downtime within 30 consecutive days for the same Service component.
means the corporation, limited liability company, partnership, or other entity that is purchasing the Services.
means the data, information, and materials that Customer stores, transmits through, or uploads into the application layer of the Services.
means, collectively and individually, employees, agents, contractors, subcontractors, service providers, and Authorized Contacts. Customer Personnel does not include Otava.
means, collectively, (a) as such term is defined in the Service Level Agreement; and (b) Force Majeure Events.
has the meaning set forth in Section 2.1 (EULA Acceptance), as applicable.
means, collectively, (a) the body of this End User License Agreement (“EULA Terms”); (b) Service Level Agreement; (c) AUP; and (d) such other written addenda that references this EULA and is accepted by Customer.
means any intellectual property rights that may exist or be created under the laws of any country or other jurisdiction anywhere in the world, whether arising under statutory or common law or otherwise, and whether or not perfected, including without limitation copyright law, moral rights law, patent law, privacy rights law, publicity rights law, semiconductor chip protection law, sui generis database rights law, trade secret law, trademark law, or unfair competition law, and any other proprietary rights relating to intangible property, and any and all applications, extensions, renewals, and restorations of any of the foregoing, now or hereafter in force and effect worldwide.
means the number of hosts, license types, memory, number of licenses, number of users, purpose, storage, or other usage limits, if any, set forth in an applicable Order Confirmation.
means a separate document that is emailed to Customer confirming the Services purchased by Customer to be performed by Otava and includes any Service changes, additions, deletions, or modifications made by Customer via the Portal pursuant to Section 2.2 (Purchasing and Changing Services).
means a distributor, reseller, or other channel sales participating entity that entered into a reseller or similar agreement with Otava.
means any web-based portal that Otava may make available to Customer to access and manage the Services, including adding Buyer and other user roles, purchasing additional Services, and submitting Services tickets. Portal includes but is not limited to Otava’s OTPortal®.
means those services set forth in one or more Order Confirmation(s) that Otava performs pursuant to Customer’s purchase from Otava.
means the date Otava makes the applicable Services available to Customer for Customer’s use.
means any infrastructure, hardware, or software, where such infrastructure, hardware, or software is owned or licensed by a Third-Party Vendor, such as Microsoft Corporation and Veeam Software Group.
means a third party that is not a Party to this EULA.
The Parties enter into and agree that this EULA governs Customer’s use and receipt of the Services on the earlier of the following: (a) Customer’s purchase of Services where the Effective Date will be the earlier of the date of Customer’s receipt of an Order Confirmation or the Services Start Date; (b) subject to Section 11.14 (Amendments and Purchase Orders), if Customer issues a purchase order that references the applicable Otava Services and which results in Otava making access credentials available to Customer for the Services or the Portal, where the Effective Date will be the date Otava issues the applicable access credentials, provided that if Otava issues an Order Confirmation in response to such purchase order, then the Effective Date will be the earlier of the date Otava sends the Order Confirmation or issues the applicable access credentials.
Upon Customer purchasing Services from Otava, Otava will email Customer an Order Confirmation and Customer will be granted access to the Portal, which Customer may use to administer, maintain, and otherwise manage certain features and functions of the Services as well as to designate various access roles for Customer’s staff, including identifying the Buyer, if any. In addition to the other purchasing methods available to Customer, Customer understands that Buyer has the authority to make changes to the Services by purchasing additional Services through the Portal and Buyer may, from time to time, request certain changes to Services components via the Portal (“Portal Orders”). Otava will affirm its acceptance of and agreement to a Portal Order by sending an Order Confirmation via email to the Customer and, if applicable, the Buyer, and the changes to the Services will be effective as of the Order Confirmation date. The Parties agree that Buyer’s submission of the Portal Order and Otava’s Order Confirmation serves as each Party’s electronic signature and any such electronic signature will be binding on such party and treated as original for purposes hereof. Customer is under no obligation to assign the Buyer access role to a Customer staff member and Customer may assign such role to a Customer staff member in its sole discretion. Customer understands that no changes to the Services will be effective until Otava confirms the change via an Order Confirmation. A downgrade to the Services may result in a Cancellation Fee.
Customer will use the Portal to designate, change, and otherwise manage various access roles for Customer and the Customer Personnel (collectively, the “Authorized Contact”) in connection with the Services. Customer agrees that Otava will be permitted to act and rely upon the direction and instructions of the Authorized Contact, unless and until Customer has revoked the relevant individual’s access role. If Customer wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority, Customer must do so through the Portal.
Customer understands and acknowledges that Otava cannot perform the Services without the assistance and cooperation of Customer Personnel. Accordingly, Customer will: (a) cooperate, in good faith, with Otava with respect to activities necessary or reasonably appropriate for Otava to perform its obligations under this EULA, including, without limitation, as applicable in light of the actual Services, cooperating with Otava to schedule maintenance required for major system upgrades; (b) devote such time as needed to timely review any information provided and timely respond to and advise Otava with respect to activities as they relate to this EULA, including, without limitation, as applicable in light of the actual Services, timely authorizing operating system upgrades; (c) provide to Otava, at no charge, reasonable access to the Customer Personnel to reasonably assist Otava with respect to the activities as they related to this EULA; and (d) reasonably facilitate and hereby authorize the communication between Otava and Customer Personnel, as necessary or reasonably appropriate for Otava to deliver the Services.
Customer agrees and understands that to perform the Services, Customer may need to make available to Otava access to Customer’s information technology resources, data systems, virtual machines, third-party software and hardware, and related resources from the Customer-side environment (collectively, the “Customer Systems”). As between Customer and Otava, Customer will, at its expense, take the necessary steps (including, without limitation, obtaining all authorizations, consents, licenses, and sublicenses) to make available to Otava the Customer Systems that Otava may require or reasonably request to provide the Services. As between Customer and Otava, Customer is solely responsible for the Customer Systems’ costs and for obtaining, installing, configuring, and maintaining appropriate equipment and ancillary services needed to connect to, access, and otherwise use the Services, including, without limitation, communication lines, network connectivity, hardware, software licenses, web browsers, and power.
Customer acknowledges and agrees that Otava’s timely performance of certain Services components depends on Customer and the Customer Personnel performing its and their obligations under this EULA. In such event, any delay or failure to perform by Customer or the Customer Personnel may extend the time required for Otava to perform its obligations, as reasonably determined by Otava, and any such extension will not be deemed a breach of Otava’s performance obligations under this EULA.
Otava may provide Customer with certain deployment, management, and support Services as described in one or more Order Confirmation(s), provided, however, Customer agrees and understands that Customer remains solely responsible for (a) understanding Customer’s legal and contractual obligations and ensuring that the Services meet Customer’s needs; (b) evaluating and understanding the limitations of the Services; (c) determining the scope and type of Services Customer must purchase from Otava to meet Customer’s operational and compliance requirements, including, without limitation, need for high availability, auditing obligations under applicable privacy and security laws, and retention duration; (d) properly configuring, managing, and monitoring the Customer-side components of the Services, including, for example, periodically testing backups if Customer’s Services include backup services; (e) properly configuring, managing, updating, and upgrading the applications and related services hosted by Customer in the Services environment (including, without limitation, as applicable, using the then-current or supported versions of the programming languages for applications, patching, using genuine and licensed software, and upgrading as needed before end of life is reached for the relevant Customer-side system component), and properly administering the Customer-side environment to ensure that Customer’s compliance objectives are achieved and legal obligations are met; (f) timely reviewing and assessing any alerts, logs files, and reports in accordance with Customer’s policies and otherwise properly monitoring the Services and the activities of the Customer Personnel and other end users on the Services; and (g) training the Customer Personnel on the scope of Otava’s Services and Customer’s obligations. Customer understands that Customer is solely responsible for all actions and activities taken or not taken, as the case may be, under access credentials assigned to Customer and the Customer Personnel in connection with the Services. Further, Customer agrees and understands that Customer, and not Otava, is responsible for managing whether the Customer Personnel are authorized to access or use the Services and Otava will have no obligations relating thereto.
Certain of the Services include functionality permitting Customer to receive alerts and other reports related to maintenance, operations, and other features and functions of the Services (e.g., log details report, integrity monitoring report, and the like) (collectively, the “Automated Alerts”). The Automated Alerts will be sent via unsecured email and may be configured to have the relevant alert or report information in the message body and as an attachment or merely a notice instructing the recipient to log into the Portal to retrieve the relevant alert or report information. Customer authorizes Otava to send the Automated Alerts via unsecured email with the alert and report information in the body and, as applicable, an attachment, unless and until Customer changes its Automated Alerts preferences either by submitting a Service ticket or, if available, through the Portal. Customer understands and acknowledges that the Automated Alerts may contain sensitive information including, without limitation, Customer’s IP addresses, system names, partial file directories, and the like and, as applicable, Customer assumes the risk of receiving such information via unsecured email and Otava will have no liability with respect thereto. Customer may have the Automated Alerts emailed to any of the Customer Personnel, including, without limitation Customer’s managed services provider. Customer understands that, as between Otava and Customer, Customer is solely responsible for ensuring that such third parties are permitted to receive the Automated Alerts. Without limiting the generality of Section 3.5 (Configuration, Management, and Monitoring), Customer will ensure that the Automated Alerts emails are scanned for malware and are subject to Customer’s other email-related controls and policies.
As between the Parties, Customer is solely responsible for and will, at Customer’s own expense: (a) to the extent required by applicable law, notify applicable end users that their personally identifiable information is accessed, collected, stored, transmitted through, or otherwise used by Otava; (b) respond to and otherwise manage consumer requests, if any, related to the Customer Data as required by applicable law, including without limitation, the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.140 et seq., as amended, and its implementing regulations (collectively, the “CCPA”); and (c) obtain all third‑party consents and authorizations with respect to the Customer Data as may be necessary or reasonably appropriate for Otava to perform the Services in accordance with this EULA and to ensure that Otava can comply with all applicable laws in providing the Services. Otava will, at Customer’s expense, (i) reasonably assist Customer, as needed, to cooperate with and respond to requests from regulators, consumers, Customers, and others to provide information related to Otava’s processing of the Customer Data and use of the Services; and (ii) assist with, respond to, or otherwise support legal holds (such as those that Otava receives from a third party because Otava stores the Customer Data), discovery requests, e-discovery, affidavits, subpoenas, and other litigation or legal proceeding support services related to the Administrator Data, Customer Data, or the Services (this Section 3.7(i) and (ii), collectively as the “Compliance Support Services”), provided that the Parties agree that, Otava may, in its reasonable discretion and to the extent legally permissible, decline to provide the Compliance Support Services or otherwise limit the scope of such Compliance Support Services. Otava will charge and Customer will pay for the Compliance Support Services at Otava’s and, if applicable, Otava’s vendors’ (including, without limitation, attorneys and digital forensics vendors), then‑current time and materials rates, provided that Otava will provide Customer and the Designated Partner with written notice in advance of charging such fees. Otava may, at its sole discretion, require a deposit or other advance payment before providing the Compliance Support Services.
The AUP governs the general policies and procedures for use of the Services. Customer’s failure to adhere to the AUP constitutes a material breach of this EULA.
As between Customer and Otava, Customer owns the right, title, and interest in and to the Administrator Data, except for the limited rights granted in this EULA and subject to applicable third‑party licensor rights in the Administrator Data (including, without limitation, third‑party trademarks in the Automated Alerts). Customer hereby grants Otava and Otava hereby accepts a fully paid, limited, nonexclusive, royalty-free right and license (a) during the Services Term and for the duration of any transition period, to access, adapt, aggregate, copy, disclose, display, distribute, modify, process, publish, reformat, store, and use the Administrator Data for the purpose of administering and performing the Services; delivering and improving the Services; facilitating Customer’s and the Customer Personnel’s use of the Services; facilitating Customer’s relationship with the Designated Partner and, as applicable, Third-Party Vendors in connection with Customer’s use of the Third‑Party Products; developing metrics and analytics; collecting and reporting demographics, logs, usage, and license information for Third‑Party Products to Third-Party Vendors as required by such Third-Party Vendors; and to otherwise fulfill Otava’s obligations under this EULA; and (b) on a perpetual basis, to access, adapt, aggregate, copy, display, modify, process, reformat, store, use, and create derivative works of Administrator Data, metrics, statistics, and other analytics and to aggregate, copy, disclose, distribute, publish, and use such information for any legally permitted purposes, including, without limitation, developing anonymized benchmarks and metrics, provided that, with respect to the use contemplated in this Section 4.2(b), Otava will use commercially reasonable efforts intended to ensure that the Administrator Data is used in a form that does not individually identify Customer or any Customer Personnel.
As between Customer and Otava, Customer owns the right, title, and interest in and to the Customer Data, except for the limited rights granted in this EULA. Customer hereby grants Otava and Otava hereby accepts a fully paid, limited, nonexclusive, royalty-free right and license during the Services Term and for the duration of any transition period, to copy, display, host, process, store, and transmit the Customer Data for the purpose of delivering the Services, including, without limitation, Customer’s and Customer Personnel’s access and use of the Third‑Party Products (if any), and to fulfill Otava’s obligations under this EULA.
Otava may make certain Third-Party Products available to Customer in connection with or to use directly with the Services or use of the Services may require a license to and use of Third-Party Products. Customer agrees and understands that Customer’s access to use of the Third-Party Products is subject to the terms and conditions of an end user license agreement, cloud services agreement, or such other document issued by the applicable Third-Party Vendor (“Third-Party EULA”). Otava does not (a) control or endorse the Third-Party Products; or (b) accept responsibility for the Third‑Party Products, unless otherwise expressly provided in the applicable Purchase Addendum, and if so provided, only for the limited services expressly enumerated in the applicable Purchase Addendum. Any and all agreements, services, and transactions between Customer and such Third-Party Vendor in connection with the Third-Party Products, including but not limited to such Third-Party Vendor’s privacy policies, service level terms, data use terms, and any other terms, conditions, representations, and warranties associated with such agreements, services, or transactions, are solely between Customer and such Third-Party Vendor. Customer agrees that Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in any of the Third‑Party Products. To the extent available to Otava and within Otava’s control, Customer will have the right to review the Third-Party EULA for any Third-Party Products upon Customer’s request and prior to executing the applicable Purchase Addendum. Customer will be solely responsible for all costs and license fees associated with the Third-Party Products and Otava will not be responsible for supporting such Third-Party Products, unless otherwise expressly provided in the applicable Purchase Addendum. If this EULA or an applicable Purchase Addendum is terminated for any reason, Otava will have no responsibility or liability to Customer for the cost of any such Third-Party Products. Unless otherwise provided in the Third-Party EULA, the rights granted to Customer in the Third-Party EULA are solely for Customer’s use in connection with the Services and will terminate on the earlier of expiration or termination of (i) this EULA; (ii) an applicable agreement between Otava and the licensor of the Third‑Party Products, as applicable; or (iii) the Third-Party EULA. Without limiting the generality of the immediately preceding sentence, Otava may, in its sole discretion and with 30 days’ advance written notice to Customer, modify or discontinue the availability of any Third-Party Products provided with the Services if the licensor or Third-Party Vendor changes its terms with Otava. By using the Third‑Party Products, Customer grants Otava permission to allow the licensors of such Third-Party Products to access and use the Administrator Data and Customer Data as required or reasonably appropriate for the purpose of delivering the Third‑Party Products to or for Customer and the Customer Personnel, as applicable, in connection with the Services, and to otherwise enable use of the features and functions of such Third-Party Products. Without limiting Section 3.7 (Consents and Authorizations), Customer will, at its own expense, obtain all third‑party consents and permissions that may be necessary and appropriate to grant the rights granted in this Section 4.4.
Customer acknowledges and agrees that Customer is engaging Otava due to Otava’s expertise, know how, knowledge, materials, special skills, and each of its component parts (including, without limitation, algorithms, analytics, audio visual works, charts, compilations, coherence and methods of operation of systems, conceptions, configurations, data, Data Center, data center architecture, database structuring techniques, databases, designs, developments, diagrams, formatting, forms, general skills, graphs, ideas, inventions, know-how, libraries (code or otherwise), lists, logic, ‘look and feel’, materials, methodologies, metrics, models, network architecture, policies, Portal, procedures, records, reports, schematics, software and its object and source code, system designs, technical documentation, techniques, templates, text, tools, user interfaces, and utilities, and other works of authorship, or any part thereof and any arrangement, coordination, combination, and selection thereof, and any improvement thereto and modifications thereof), and proprietary information, and all Intellectual Property Rights therein (collectively, the “Otava Materials”) that Otava developed or acquired prior to this EULA or during this EULA but in connection with performing services for another Customer. As between Customer and Otava, Otava will retain and Customer acknowledges that Otava hereby retains all interest, right, and title in and to the Otava Materials and nothing contained in this EULA will be construed as the relinquishment on the part of Otava of any of Otava’s ownership interest in the Otava Materials. Further, for the avoidance of doubt, Otava may develop certain improvements and modifications to the Otava Materials and other general skills as a result of working with Customer. Otava will retain all interest, right, and title of every nature in and to such improvements, modifications, and general skills throughout the universe, whether such rights are now known or hereafter devised, with the right to use the improvements, modifications, and any applicable general skills in perpetuity in any manner Otava desires, in its sole discretion (but subject to Otava’s obligations respecting Customer’s Confidential Information, as applicable), without any payment to Customer or any obligation of accounting.
Customer acknowledges and agrees that all content on the Third-Party Products and the Otava Materials as well as certain content on the Administrator Data (including with respect to each of the Third‑Party Products, Otava Materials, and Administrator Data, as applicable and without limitation, audio, graphics, graphs, images, sounds, text, user interfaces, and visual interfaces as well as, without limitation, the arrangement, coordination, design, expression, ‘look and feel’, structure, and selection thereof) is the exclusive property of and owned by Otava, the Third-Party Products vendors, the Administrator Data vendors, or its and their licensors and are protected by copyright, trademark, and other Intellectual Property Rights and unfair competition laws. Customer will not and will not permit any of the Customer Personnel to modify, obscure, or delete (including through selectively copying or printing material) any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded in the Third‑Party Products, Otava Materials, or Administrator Data. Nothing on or in the Third‑Party Products, Otava Materials, or Administrator Data will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any logo, service mark, or trademark displayed thereon or therein, without the owner’s prior written permission, except as otherwise described in these EULA Terms or, with respect to the Third-Party Products, in a license between Customer and such Third-Party Products vendor (including any Third‑Party EULA).
Customer agrees and understands that certain of the systems and software used to deliver the Services or the Third-Party Products or otherwise used in connection with the Services or the Third-Party Products may, from time to time, collect and automatically report back information related to usage of the Services, the Third‑Party Products, and related information technology systems (“Usage Data”). Usage Data but may include IP addresses, but does not include Customer Data. Such Usage Data may be reported to Otava as well as the relevant information technology or software system Third-Party Vendor. Usage Data may be used by Otava and the relevant information technology and software system vendors for any legally permitted purposes, including, without limitation, helping diagnose and resolve technical and performance issues in relation to Otava’s and such vendor’s systems, improving the Services, validating license keys, monitoring for compliance with Limitations (e.g., amount of RAM on server, number of virtual machines, and the like), developing metrics and analytic algorithms, and developing metrics and analytic algorithms. Further and for the avoidance of doubt, Customer agrees and understands that Otava uses all data collected in connection with its business and operations for the operation and management of its business including, without limitation, (a) creation of operational statistics; (b) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (c) creation and inclusion in marketing materials of aggregate statistics highlighting the Services; and (d) advancing and improving existing products and services, creating new and enhanced products and services, and development and publication of market and industry intelligence and expertise; all of which and any improvements thereto and whether in tangible or intangible form, will be and remain the intellectual property of Otava and Otava will own all Intellectual Property Rights therein.
Customer agrees that submission of any content corrections, documents, error reports, ideas, improvements, modifications, proposals, or suggestions (collectively, the “Feedback”) to Otava through its feedback form, meetings, Portal, service tickets, suggestion form, support calls or conference calls, or similar means is at Customer’s own risk and that Otava has no obligations (including, without limitation, obligations of confidentiality or use) with respect to such Feedback. Customer hereby grants to Otava a fully paid, irrevocable, royalty-free, perpetual, sub‑licensable, transferable, worldwide, and nonexclusive right and license to adapt, copy, disclose, display, distribute, modify, perform, reformat, use, create derivative works of, and otherwise exploit any and all Feedback for any legally permitted purposes.
Otava and its suppliers retain all interest, rights, and title in and to the Automated Alerts, Portal, and Otava Materials (collectively, the “Licensed Materials”) and all rights to the Licensed Materials not expressly granted to Customer in this EULA are reserved. The Third‑Party Vendors retain all interest, right, and title in and to their respective Third‑Party Products. Any unauthorized use of the Licensed Materials, the Third‑Party Products, or any component thereof is a material breach of this EULA. Customer will not: (a) copy or reproduce the Licensed Materials or the Third‑Party Products in whole or in part, access or use the Licensed Materials in any way other than as expressly permitted in this EULA, or, if applicable, access or use the Third‑Party Products in any way other than as expressly permitted in this EULA or the Third‑Party EULA; (b) modify, translate, or create derivative works of the Licensed Materials or Third‑Party Products or any portion thereof; (c) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of any software made available to Customer in connection with the Services (including, without limitation, the Portal and the Third‑Party Products) is compiled or interpreted, and Customer hereby acknowledges that nothing in this EULA will be construed to grant Customer any right to obtain or use such source code; (d) assign (except together with Customer’s business pursuant to Section 11.3 (Assignments)), distribute, grant a security interest in, lease, loan, rent, sell, share, sublicense, timeshare, use for service bureau purposes, or otherwise transfer (except in accordance with Section 11.3 (Assignments)) the Licensed Materials or Third‑Party Products; (e) divert, export, re-export, or transfer any part of the Licensed Materials, Services, or Third‑Party Products to any country, individual, company, or other entity that is embargoed by the U.S., in violation of any U.S. export law or governmental regulation, or otherwise identified on a list of debarred, prohibited, sanctioned, or denied parties; (f) unless expressly authorized by Otava or an applicable Third‑Party Vendor in writing, access or use the Services or any Third‑Party Product for purposes of monitoring its availability, functionality, or performance, or for any other benchmarking purpose, including authorizing or undertaking a penetration test, vulnerability scan, social engineering test, or any other similar activity against the Services, Otava, any of Otava’s Third-Party Vendors, or any of Otava’s employees, agents, or subcontractors; (g) interfere with or attempt to interfere with the proper functioning of the Services, Third-Party Products, Otava, any of Otava’s Third-Party Vendors, or any Otava agent, contractor, or subcontractor, including subverting or attempting to subvert embedded security controls, the reporting mechanisms for reporting and monitoring Limitations, or the mechanisms to validate license keys; or (h) authorize, assist, or cause any third party, including any of the Customer Personnel, to do any of the foregoing. Customer agrees and understands that the restrictions in this Section 4.9 apply to (i) any component of the Licensed Materials that is relevant to the restriction; and (ii) to the Third-Party Products to the extent such restriction is relevant, unless expressly permitted by the Third-Party EULA or some other arrangement between Customer and the owner of such Third‑Party Product.
Otava will have the right, in addition to any of its other rights or remedies, to suspend Customer’s and the Customer Personnel’s access to the Licensed Materials, Services, and the Third‑Party Products, without liability to Customer, if (a) Otava determines, in its reasonable discretion, that such suspension is necessary or reasonably appropriate to protect the security or integrity of the Licensed Materials, Services, or the Third‑Party Products or the security of other Otava Customers; or (b) Otava does not receive the Usage Data as required, or Customer otherwise interferes with the reporting mechanisms for reporting and monitoring Limitations or the mechanisms to validate license keys for the Third‑Party Products and other software. Such access may remain suspended until Otava reasonably determines that the threat has passed or that Customer has taken the appropriate steps, as reasonably determined by Otava, to remedy the identified threat or interference, as applicable. Further, Otava may, without liability to Customer, suspend the access credentials of the Customer Personnel who violate this EULA and may terminate the access credentials of Customer Personnel who repeatedly violate this EULA.
. Upon placing an order for Services, Customer will be responsible for payment for Services. Notwithstanding the immediately preceding sentence, Customer understands and agrees that (a) Otava may change the rates specified on any Otava fee schedule and add or remove services at any time; (b) if Customer exceeds contractual Limitations in connection with a Services purchased by Customer, Otava will bill for such excess consumption at the overage fee rate set forth in the applicable Order Confirmation and if no rate is set forth, then in accordance with Otava’s then-current rates; and (c) Otava may charge additional fees for technical support services to the extent the relevant issue was caused by Customer, Customer Personnel, Customer Data, or the Customer Systems, including, without limitation, for assisting Customer to restore data from the Services environment in the event Customer suffers a ransomware event, which technical support services will be provided on a time and materials basis at Otava’s then‑current technical support rates, provided that Otava will provide Customer, with written notice prior to undertaking work that will result in any such fees. If Customer is entitled to Service level credits under the Service Level Agreement or a refund under this EULA, then unless otherwise specified by Otava, Otava will issue any applicable credits and refund any applicable fees to Customer.
Notwithstanding Section 5.1 (Orders), Otava will have the right, in addition to any of its other rights or remedies, to suspend performance of the Services (in whole or in part and including, without limitation, access to the Licensed Materials, Third‑Party Products, and any license keys issued to or otherwise made available to Customer or the Customer Personnel), without liability to Customer, if Otava does not receive timely payment of undisputed amounts, from Customer. Such Services and license keys may remain suspended until the undisputed amounts are paid in full.
This EULA will commence on the Effective Date and will remain in effect until all Services have expired or been terminated in accordance with Section 6.3 (Termination).
Unless otherwise noted in the applicable Order Confirmation, Customer may terminate any Service component through the Portal. Termination of the last Service component will automatically terminate this EULA without any further action by either Party. Customer agrees and understands that Customer will not be eligible for prorated fees or a refund of fees for any Service component cancelled or terminated hereunder.
Without limiting Otava’s rights pursuant to Section 4.11 (Suspension for Security) or Section 5.2 (Suspension for Non-Payment), Otava may terminate this EULA immediately upon written notice and deny Customer access to the Licensed Materials, Services, and the Third‑Party Products, without liability to Customer, in the event Customer fails to make payments for the Services.
Customer may terminate an affected Service component in the event of a Chronic Service Interruption via the Portal. Customer understands that Customer will remain liable for termination fees for any Third‑Party Vendor charges incurred by Otava.
Except as otherwise expressly contemplated in a Business Associate Agreement or the GDPR Addendum entered into between Otava and Customer, if any, upon expiration or termination of this EULA, upon written request from a Discloser, the Recipient will promptly return to the Discloser or, at Discloser’s request, destroy, any tangible and intangible Confidential Information of Discloser in the possession or under the reasonable control of Recipient, including all copies and portions thereof, provided that Recipient may retain such Confidential Information to the extent necessary or reasonably appropriate to comply with applicable business recordkeeping and compliance purposes. Any Confidential Information retained past expiration or termination in accordance with the preceding sentence will remain subject to the terms of Section 7.3 (Obligations to Protect). Upon written request, the Recipient will provide to the Discloser with an officer’s written statement certifying to its compliance with the foregoing obligations to return or destroy the Confidential Information. Notwithstanding the foregoing, Customer agrees and understands that nothing in this Section 1 will require Otava to return or destroy (a) Customer’s Confidential Information or Administrator Data that may be contained or stored in Otava’s electronic archival or backup files or in Otava’s backup Services until such files are destroyed in accordance with Otava’s normal business practices and policies; or (b) the Usage Data.
Upon termination by either Party and upon Customer’s written request, Otava will reasonably cooperate in the transition of Services under this EULA to Customer or its designee, including the transfer of all Customer Data, provided, however, that Customer understands and agrees that Otava may, in its sole discretion, decline to provide such transition services if Services were suspended in accordance with Section 5.2 (Suspension for Non-Payment) or terminated in accordance with Section 2 (Termination for Cause by Otava), until Customer pays to Otava all such outstanding invoices. Otava will charge Customer at Otava’s standard support rates to provide such transition services.
The provisions of 3.7 (Consents and Authorizations), 4.2 (Administrator Data), 4.3 (Customer Data), 4.4 (Third‑Party Products), 4.5 (Otava Proprietary Rights), 6 (Trademarks and Copyrights), 4.7(Usage Data and Operational Information), 4.8 (Feedback), 4.9 (Restrictions), 5.1 (Orders), 6.4 (Obligations Upon Termination), 6.5 (Survival), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Indemnification and Limitation of Liability), 10.1 (Audits), and 11 (General Terms) will survive the termination or expiration of this EULA until any obligations arising prior to such termination or expiration have been satisfied in accordance with the applicable terms.
In the provision of the Services, each Party (“Recipient”) may have access to or otherwise receive Confidential Information from the other Party (“Discloser”). For purposes of this EULA, “Confidential Information” means all information in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to: (a) the terms and fees under this EULA; (b) information relating to Discloser’s business or financial affairs, including, without limitation, business plans and techniques, communications, competitive intelligence, contractor information, Customers, employee information, financial information and statements, internal controls, know-how, management plans, manner of operation, marketing plans and techniques, negotiations, price lists, pricing structures and policies, processes, prospective customers, policies, reports, security procedures, vendor lists, work-in-process and product plans, and trade secrets; (c) with respect to Otava, all audit and security reports (including those contemplated in Section 8.3.2 (Security Audits)), software and technical information, including the Portal, user interfaces, analytics, audio-visual works, data center designs (including information Customer may observe on a tour or in the use of a Data Center) and technical architecture, formatting, “look and feel,” schematics, and know-how that are used by Otava to deliver the Services and any improvement, enhancements, or modifications thereto, whether tangible or intangible; (d) with respect to Customer, the Customer Data; and (e) any other data, information, or knowledge, in whatever form or medium, concerning or relating to the business affairs of Discloser or of any other person or entity that has entrusted information to Discloser in confidence and that should reasonably have been understood by Recipient (because of legends or other markings, circumstances of disclosure, or nature of the information itself) to be proprietary or confidential to Discloser. For any Confidential Information disclosed orally, such disclosure will be identified at the time of initial disclosure as confidential and confirmed as confidential in writing within 30 days of such disclosure to Recipient.
Confidential Information does not include and the obligations set forth in this Section 7 (Confidentiality) do not apply to any information that Recipient can demonstrate by written records: (a) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by Recipient or its Representatives); (b) was available to Recipient on a non-confidential basis prior to its disclosure by Discloser or Discloser’s Representatives; (c) becomes available to Recipient on a non-confidential basis from a person who is not otherwise bound by a confidentiality agreement with Discloser or Discloser’s Representatives, or by any other obligation of secrecy; (d) is independently developed by Recipient without the aid, application, or use of Discloser’s Confidential Information; (e) subject to Section 7.4 (Required Disclosures), is required by law to be disclosed; or (f) if applicable, is “protected health information” (as such quoted term is defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, each as amended) (“PHI”), which will be subject to the Business Associate Agreement entered into between the Parties.
The Parties agree that PHI will not be disclosed under this EULA. But, if that changes, then Customer will provide Otava with prompt written notice via a Service ticket and the Parties will enter into a mutually agreeable Business Associate Agreement, which will be incorporated into and made part of this EULA upon the signature of an authorized representative from each Party.
The Parties agree that “personal data” (as such quoted term is defined in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as set forth at OJ L 119, May 4, 2016, as amended, or as defined in the United Kingdom’s Data Protection Act 2018, as amended by Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit)) Regulations 2019) will not be disclosed under this EULA. But, if that changes, then Customer will provide Otava with prompt written notice via a Service ticket and the Parties will enter into a mutually agreeable GDPR Addendum, which will be incorporated into and made part of this EULA upon the signature of an authorized representative from each Party.
The Parties agree that information subject to the Payment Card Industry Data Security Standard will not be disclosed under this EULA. But, if that changes, then Customer will provide Otava with prompt written notice via a Service ticket and the Parties will enter into a mutually agreeable PCI-DSS Addendum, which will be incorporated into and made part of this EULA upon the signature of an authorized representative from each Party.
Recipient will not use Discloser’s Confidential Information except in connection with the performance or use of the Services, performing its obligations under this EULA, or exercising the rights granted in this EULA (collectively, the “Purpose”), except as permitted in this EULA or as otherwise authorized by Discloser in writing. Recipient may disclose Discloser’s Confidential Information to Recipient’s directors, officers, employees, advisors (including financial advisors, legal counsel, and accountants), subcontractors, and agents (collectively, the “Representatives”) who have a reasonable need for access thereto in connection with the Purpose, provided that (a) the Representatives will be bound by an obligation of confidentiality; and (b) Recipient agrees to be responsible for any breach of such confidentiality obligations by its Representatives. The Parties further agree that the Recipient may disclose Discloser’s Confidential Information (i) to establish Recipient’s rights or enforce obligations under this EULA, but only to the extent that any such disclosure is reasonably appropriate; (ii) to any potential transferee or assignee as contemplated in Section 11.3 (Assignments); (iii) in connection with acquisition or investment activity, provided that Recipient agrees that any such third party recipient is treated as if such third party recipient was a Representative of Recipient; (iv) to a government or other third‑party auditor in connection with an audit, but only to the extent that any such disclosure is reasonably appropriate and the auditor is bound by an obligation of confidentiality to the extent permitted under applicable law; and (v) as required by applicable law, including, without limitation, in connection with government reporting obligations, if any, except in connection with an Order, which will be handled in accordance with Section 7.4 (Required Disclosures).
Recipient agrees to maintain, and will cause any Representatives to maintain, the confidentiality of the Confidential Information, and to protect as a trade secret any portion of Discloser’s Confidential Information that constitutes a trade secret, by using the same standard of care in protecting Discloser’s Confidential Information as Recipient uses to protect its own confidential and proprietary information, but in any case no less than a commercially reasonable degree of care, to prevent any unauthorized copying, disclosure, distribution, installation, transfer of possession, or use of such Confidential Information.
Should Recipient receive a request to disclose any of Discloser’s Confidential Information under the terms of a valid and effective subpoena or order (including oral questions, interrogatories, requests for information or documents, civil investigative demand or similar process, or otherwise) issued by a court of competent jurisdiction, administrative agency, or is otherwise legally compelled (collectively, the “Order”), unless otherwise prohibited in such Order, Recipient agrees to: (a) promptly notify Discloser of the existence, terms, and circumstances surrounding such request; (b) cooperate with Discloser to secure confidential treatment of Discloser’s Confidential Information or to otherwise take legally available steps to resist or narrow such request; and (c) if disclosure of Discloser’s Confidential Information is required, disclose to the person compelling disclosure only that portion of Discloser’s Confidential Information that is legally required to be disclosed. Notwithstanding the foregoing, Customer agrees that nothing in this Section 7.4(c) will be interpreted to require Otava, even if technologically feasible, to access or otherwise search the data Customer stores or otherwise transmits through the application layer of the Services and, in such event, if disclosure of Customer’s Confidential Information is required, subject to Otava complying with this Section 7.4(a) and (b) (unless prohibited in the Order), Otava may disclose the entirety of the data or the server, as applicable. If an Order compels Otava to provide or otherwise results in Otava providing Compliance Support Services, then Otava will charge for such Compliance Support Services as described in Section 3.7 (Consents and Authorizations).
Confidential Information is and will remain the exclusive property of Discloser. Each Party agrees that it will have no proprietary interest in the other Party’s Confidential Information and that nothing contained in this EULA will be construed to grant either Party any rights, by license or otherwise, to any of the other Party’s Confidential Information disclosed pursuant to this EULA, except for and only to the extent of the limited use granted in this EULA.
The terms of this Section 7 (Confidentiality) supersede the terms of any agreement of confidentiality previously entered into and still in effect between the Parties and any information required to be treated as confidential under such agreement will be treated as Confidential Information under the terms of this EULA.
To the extent the Services include the “processing” of “personal information” by Otava (as such quoted terms are defined in the CCPA) and Customer is a “business” (as such quoted term is defined in the CCPA), the Parties agree that: (a) Otava is a “service provider” (as such quoted term is defined in the CCPA); (b) Customer is solely responsible for complying with the obligations of a business as set forth in the CCPA; and (c) Otava will not disclose, retain, or use such “personal information” for any purpose (including a commercial purpose) other than performing Otava’s obligations under this EULA or as otherwise permitted by the CCPA.
Each Party represents and warrants to the other Party that: (a) it has the right and authority to enter into this EULA and, with respect to Customer that Buyer has the right and authority to enter into the Purchase Addenda and that Buyer’s electronic signature will be binding on and treated as an original signature of Customer; (b) no approval, authorization, or consent of or declaration, designation, or filing with any governmental authority is required in connection with the valid delivery, execution, and performance of this EULA; (c) the delivery, execution, and performance of this EULA and the consummation of the transactions contemplated by this EULA have been duly authorized by the requisite corporate action on the part of such Party, and this EULA constitutes the valid and binding obligation of such Party enforceable against it in accordance with the terms hereof; and (d) the delivery and execution of this EULA does not conflict with or violate any other agreement, commitment, contract, instrument, license, or other arrangement to which such Party is a party or by which such Party is bound.
Each Party represents and warrants to the other Party that it will, at its own expense, comply with all laws, regulations, and other legal requirements in all material respects that apply to such Party with respect to this EULA and the use of the Services, including without limitation copyright, privacy, data security (including, to the extent applicable to a Party in connection with the Services, the Health Insurance Portability and Accountability Act of 1996, Payment Card Industry Data Security Standards, and the Gramm-Leach Bliley Act), and communications decency laws and regulations.
Customer represents and warrants to Otava that: (a) Customer will not use or allow the Customer Personnel to use the Services (i) in a manner that violates the AUP or any applicable law in any material respect, or (ii) in a manner that is reasonably expected to disrupt third parties’ use or enjoyment of any communications service or outlet; (b) Customer will not violate or tamper with the security of any Otava or Third‑Party Vendor equipment or software program; (c) Customer will be responsible for the Customer Personnel and each Customer end user in their use of the Services; (d) Customer has accepted the Third‑Party EULA associated with any Third‑Party Products; (e) to the extent Customer uses the Services to maintain, process, transmit, or use PHI, personal data, or credit card information, that Customer has entered into a Business Associate Agreement, GDPR Addendum, or PCI-DSS Addendum, as applicable; and (f) Customer is the lawful owner of, has, or, as applicable, will, secured all third‑party authorizations and consents necessary to grant the rights and licenses granted under this EULA or that may be necessary to permit Otava to perform the Services hereunder.
Otava represents and warrants to Customer that the Services performed hereunder will be of professional quality and will be performed in a professional manner consistent with the level of care and skill exercised by other professionals in performing Services of a similar nature.
Otava represents and warrants to Customer that Otava will undertake annual services audits such as SSAE 16 or SOC 2 or their equivalents (“SOC Audit”) and, if the Parties enter into a Business Associate Agreement, Otava will undertake an annual HIPAA Risk Analysis, which audits will be undertaken by a third party. Annually and upon written request, Otava will provide to Customer a copy of Otava’s then current SOC Audit report and, if such SOC Audit report is not yet available, Otava will deliver to Customer a gap letter until such SOC Audit report is complete. Otava will further provide any updates to the SOC Audit report as may be necessary to address any deficiencies identified in such audit. Otava may, from time to time and in its sole discretion, obtain other certifications intended to evaluate the security of the Data Center(s) housing the Customer Data or measures to ensure data confidentiality of the Customer Data in the Data Center(s), and, in such event, Otava will provide information regarding such certification(s) to Customer.
The warranties set forth in this Section 8 are the only warranties made by Otava. To the fullest extent permitted by applicable law, Otava makes no other warranties of any kind, express or implied, with respect to its Services, any related service or software, any third‑Party Product, or the fitness of the data center for Customer’s use. To the fullest extent permitted by applicable law, Otava hereby expressly disclaims any implied warranty of merchantability, fitness for a particular purpose, and non‑infringement, implied warranties arising from a course of dealing or course of performance or usage of trade, or warranties that the Services will be uninterrupted, timely, error-free (including, without limitation, that the services will not contain check-sum errors and that patches and updates will not cause instability), compatible with Third‑Party Products or any Customer software or Customer Systems or Customer Data, or that all errors will be corrected. No oral or written information given by Otava (except for this EULA), its employees, Otava Partners, or licensors, or the like will create a warranty. Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in any Third‑Party Products. Further, Customer agrees and acknowledges that the Third‑Party Vendor may change or amend its guidelines or the features and functionality of its Third‑Party Products at any time, and Otava will not be liable for any such changes or any issues arising therefrom or as a result thereof. As between the Parties, Customer is solely responsible for, and assumes the risk of, any problems resulting from the accuracy, completeness, consistency, content, and integrity of all of the Customer Data.
Without in any manner limiting the disclaimer in Section 8.4.1 (Disclaimer), to the fullest extent permitted by applicable law, Customer’s sole remedies associated with the Services are set forth in the Otava Service Level Agreement and in Section 6.3.4 (Termination for Chronic Service Interruption) of these EULA Terms, and Customer expressly waives any and all other remedies available at law or in equity.
Each Party agrees to indemnify, defend, and hold the other Party and its affiliates, and its and their respective officers, directors, employees, agents, and licensors harmless from and against any and all losses, reasonable expenses actually incurred, damages, and reasonable costs actually incurred, including reasonable attorneys’ fees actually incurred, that are awarded against the indemnified party to the extent arising out of any third-party claim alleging a material breach of such Party’s representations and warranties contained in Section 8 of these EULA Terms. In no event will either Party be liable to the other or to any third party for claims (whether direct or indirect) caused by or incurred as a result of negligence, acts or omissions of the Party or such Party’s employees or agents in connection with this EULA. Further, in no event will Otava be liable to Customer or to any third party for claims (whether direct or indirect) caused by or incurred as a result of negligence, acts or omissions of Customer Personnel in connection with this EULA.
To the fullest extent permitted under applicable law, in no event will either Party be liable to the other Party or any third party for special, punitive, indirect, incidental, or consequential damages of any nature (including, without limitation, loss of contracts, revenue, goodwill, or reputation), for any reason, including without limitation the breach of this EULA or any termination of this EULA, whether such liability is asserted on the basis of contract, warranty, tort (including negligence or strict liability), product liability, course of dealing, or otherwise, even if the Party, its affiliates, agents, licensors, and third‑party partners were warned of the possibility of such damages or such damages were otherwise foreseeable, and notwithstanding any failure of essential purpose of any limited remedy.
Subject to Section 9.2 (No Special Damages) and applicable law, Notwithstanding anything in this EULA to the contrary (except for the last sentence in this Section 9.3), each Party’s total cumulative liability to the other Party concerning performance or nonperformance by either Party or in any way related to the subject matter of this EULA, and regardless of whether a claim is based in contract, negligence, tort, strict liability, or other legal or equitable theory will not exceed, in the aggregate, the sum of the monthly fees paid or to be paid to Otava by the CUSTOMER during the term of the relevant Purchase Addendum under which the claim arose, but not including any Renewal Term. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy. Nothing in this Section 9.3 will be interpreted to limit or cap the fees due to Otava under this EULA (including, without limitation, the Services fees, the Compliance Support Services fees, and, as applicable, the Cancellation Fees) or otherwise modify Customer’s obligation to pay such fees.
Each Party’s indemnification obligations hereunder are conditioned on the indemnified party: (a) promptly notifying the indemnifying Party of any claim in writing, provided that failure to provide such notice will not diminish the indemnifying Party’s indemnity obligations hereunder except and only to the extent that the indemnifying Party forfeits rights or defenses by reason of such failure; (b) giving the indemnifying Party, at the indemnifying Party’s expense, reasonable assistance and information requested by the indemnifying Party in connection with the defense or settlement or both of the indemnifiable claim; and (c) granting the indemnifying Party sole control of the defense, management, and settlement of the claim and the right to make counterclaims pertaining to any such indemnifiable claim in the name and on behalf of the indemnified party. Any settlement by the indemnifying Party requiring the indemnified party to make any admission of liability will be subject to the indemnified party’s written approval in its sole discretion. The indemnified party will have the right to participate in the defense of any indemnifiable claim with counsel selected by it, at its expense, subject to the indemnifying Party’s right to control the defense thereof. Further, each Party agrees to reasonably cooperate with the other Party’s insurance carrier in connection with the indemnifiable claims.
Customer acknowledges and agrees that Otava has set its prices and entered into this EULA in reliance on the disclaimers, exclusions, and the limitations of liability set forth herein, that such disclaimers, exclusions, and limitation of liability reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that such disclaimers, exclusions, and limitation of liability form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions, or limitations of liability, the provisions of this EULA, including, without limitation, the economic terms, would be substantially different.
Otava may audit Customer’s use of the Services and Otava may permit relevant Third‑Party Vendors (such as Veeam if Customer’s Services include Veeam® software) to audit Customer’s use of the Third‑Party Products and the related Services in connection with Customer’s use of such Third‑Party Products. Customer will and, as applicable, will ensure that the Customer Personnel, reasonably cooperate with all such auditing activities, including, without limitation, permitting access to and copying of relevant records. Such audit will be conducted during Customer’s regular business hours, will not unreasonably interfere with Customer’s business activities, and may be conducted at Customer’s offices or electronically. Otava reserves the right to require the installation of auditing software to enable automated billing and consumption verification on the Services or any part thereof.
Neither Party has received or been offered any illegal or improper bribe, gift, kickback, payment, or thing of value from any of the other Party’s employees or agents in connection with this EULA and if a Party learns of any violation of any such restriction, such Party will use reasonable efforts to promptly notify the other Party.
Otava will maintain for the duration of the Services Term and at Otava’s sole expense, (a) Comprehensive General Liability Insurance in an amount not less than $1,000,000 per occurrence for bodily injury; (b) Employer’s Liability in an amount not less than $1,000,000 per occurrence; (c) Worker’s Compensation in an amount not less than that prescribed by statutory limits; (d) Data Breach Insurance in an amount not less than $1,000,000; and (e) Umbrella liability in an amount not less than $1,000,000.
Customer will maintain for the duration of the Services Term and at Customer’s sole expense, (a) Comprehensive General Liability Insurance in an amount not less than $1,000,000 per occurrence for bodily injury; (b) Employer’s Liability in an amount not less than $1,000,000 per occurrence; and (c) Data Breach Insurance in an amount not less than $1,000,000, which will include coverage for loss of data stored with a cloud‑based or off-site vendor.
Each Party will maintain the applicable insurance coverage as described in this Section 10.3 with insurance companies having an A.M. Best rating of not less than A-. Upon written request, a Party will furnish to the other Party certificates of insurance or other satisfactory documentation evidencing that all of the insurance required hereunder is in force. The limits set forth in this Section 10.3, as applicable, are minimum limits and will not be construed to limit either Party’s liability.
Only in the case of complying with applicable laws and governmental requests, or to protect Otava’s systems, facilities, or Customers, Otava may, in its reasonable discretion, access and disclose any information that is necessary or reasonably appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and, subject to compliance with Section 7.4 (Required Disclosures) or the Business Associate Agreement or GDPR Addendum, if applicable, content residing in the Services. Otava may, but will have no such obligation unless expressly required by applicable law, to report any activity that it reasonably suspects, after reasonable inquiry, violates any applicable law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
In the event that a claim, controversy, or dispute relating to this EULA arises between the Parties, either Party will, by written notice, call a meeting regarding the dispute to be attended (in person or by phone) by executive officers of each Party, with authority to settle the dispute, who will attempt in good faith, to resolve the dispute. If the dispute cannot be resolved through good faith negotiations within 45 days from the initial meeting between the officers, then either Party may, subject to Section 11.10 (Waiver of Jury Trial) pursue its remedies at law. Before any litigation may be commenced against either Party, a Party will provide 10 days’ written notice of the alleged default and intent to file a lawsuit to the other Party. Notwithstanding the foregoing terms, the Parties agree that a Party may promptly file a claim in the event the statute of limitations is due to expire for a claim within the 45 day or 10-day period contemplated in this Section 11.1. All negotiations pursuant to this Section 11.1 will be confidential and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence to the fullest extent permitted under such rules.
Notwithstanding Section 11.1 (Dispute Resolution), if a Party determines, in good faith, that a breach or threatened breach of the terms of this EULA by the other Party would result in irreparable harm, such that a temporary restraining order or other form of injunctive relief is the only appropriate and adequate remedy, such Party may proceed directly to court and may obtain such relief without bond (if permitted by law). The Parties further agree that either Party may proceed directly to court if the other Party breaches or threatens to breach its obligations under Section 7 (Confidentiality) or, if applicable, the Privacy Addenda.
Neither Party may assign or transfer its rights or duties in connection with the Services provided by Otava without the prior written consent of the other Party, which will not be unreasonably delayed, conditioned, or withheld, provided, however, that either Party may assign its rights and obligations hereunder to (a) a parent or subsidiary of an affiliate; (b) a purchaser of all or substantially all assets related to this EULA; or (c) a party participating in a merger, acquisition, sale of assets or other corporate reorganization of a Party. All transfers of rights or duties herein in violation of this Section 11.3 will be void and unenforceable as a matter of law. This EULA is binding on, will inure to the benefit of, and is enforceable against the Parties and their respective successors and assigns.
The Parties are independent contractors, and nothing in this EULA will be deemed to place the Parties in the relationship of employer-employee, principal-agent, or partners or in a joint venture. Neither Party will have any authority to bind or make commitments on behalf of the other Party for any purpose, nor will any such Party hold itself out as having such authority. Customer understands that Otava Partnersare not authorized to modify this EULA or make any promises or commitments on Otava’s behalf, and Otava is not bound by any obligations to Customer other than as set forth in this EULA.
Nothing express or implied in this EULA is intended to confer, nor will anything herein confer, upon any person other than Otava, Customer, or their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
Failure of either Party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights. No waiver of any provision of this EULA will be binding upon the Parties, unless evidenced by a writing duly signed by an authorized representative from each Party.
If any provision of this EULA is held to be illegal, invalid or unenforceable in any respect by a court of competent jurisdiction, then the Parties will exercise commercially reasonable efforts and negotiate in good faith to substitute for such provision a legal, valid, and enforceable provision which obtains, to the fullest extent reasonably practicable, the same result as the provision declared illegal, invalid, or unenforceable. Except for the terms in Section 8.4 (Warranty Limitations), Section 9.2 (No Special Damages), and Section 9.3 (Damages Cap), the provisions hereof are severable, and, if the Parties are unable to agree upon a substitute provision after attempting to do so as required under the preceding sentence, then the provision of this EULA that is held to be illegal, invalid, or unenforceable will be severed from this EULA, and the remaining provisions of this EULA will remain in full force and effect.
Either Party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence beyond its commercially reasonable control or contingency beyond its commercially reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, or governmental requirements (collectively, the “Force Majeure Events”). The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay as long as such delay remains beyond such Party’s commercially reasonable control.
This EULA will be deemed to have been made in the State of Michigan in the County of Washtenaw, and the provisions and conditions of this EULA will be governed by and interpreted in accordance with the substantive laws of the State of Michigan, without regard to conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts residing in Washtenaw County, Michigan for the resolution of any and all disputes arising under this EULA or in any manner related to the Services.
To the fullest extent permissible under applicable law, Each Party hereby knowingly and voluntarily waives any and all rights to a jury trial, to the fullest extent that any such right will now or hereafter exist, in anY proceeding, claim, counter-claim or other action involving any dispute or matter arising under THIS EULA or in any manner related to the Services.
Both Parties agree to cooperate with each other in good faith to coordinate the issuance of a press release concerning this EULA, provided that each Party must approve any press release prior to its release. Customer agrees that Otava may designate Customer as a reference account for the Services.
Unless expressly permitted otherwise with respect to a particular notice requirement of this EULA (including, without limitation, amendments to this EULA as contemplated in Section 11.14 (Amendments and Purchase Orders)), any required notices hereunder will be given in writing by certified mail, overnight express delivery service (such as Federal Express), or by priority mail by a recognized express mail vendor, at the headquarters address of each Party or to such contact address as indicated on a Party’s website. Notice will be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered.
This EULA and each of its attachments and exhibits, each incorporated herein and made part hereof, expresses the complete and final understanding of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications between the Parties, whether written or oral, with respect to the subject matter hereof. In the event of a conflict between these EULA Terms and any other document comprising this EULA, unless otherwise expressly set forth in the applicable section of the body of these EULA Terms, the following order of precedence will apply, but only to the extent of an express conflict or inconsistency: (a) these EULA Terms; (b) the Business Associate Agreement, the GDPR Addendum, or PCI-DSS Addendum, if any (collectively, the “Privacy Addenda”); (c) (d)the Service Level Agreement; Order Confirmations; and (e) all other exhibits or addenda referencing this EULA that are signed (including by electronic signature or acknowledgment) by an authorized representative of each of Otava and Customer.
No modification or amendment of any provision of these EULA Terms will be binding upon the Parties, unless evidenced by a writing that references this EULA, restates these EULA Terms, as modified, in their entirety, and is duly signed by an authorized representative from Otava and Customer. The Privacy Addenda may be modified as set forth in the Privacy Addenda and if not so stated, then upon the written agreement of the Parties that references the applicable Privacy Addenda and is duly signed by an authorized representative from Otava and Customer. Purchase Addenda are amended as set forth in Section 2.3 (Purchasing and Changing Services). Otava may amend or modify each of the AUP, the Data Center Rules of Use, Service Level Agreement, and all other addenda (collectively and individually, the “Other Addenda”) as set forth in such Other Addenda and if not so set forth then by providing at least 45 days advance notice to Customer of such amendments or modifications. Notice of any such amendments or modifications to the Other Addenda will be provided by email to the Buyer, Otava’s primary business contact for Customer, Service ticket, mail, by posting in the Portal. If Customer determines, in Customer’s reasonable discretion, that the proposed change to the Other Addenda materially impacts Customer in an adverse manner, Customer will provide written notice with a brief explanation of the adverse impact to Otava (with attention to Contract Manager) within 15 days (“Amendment Objection Notice”). If no such notice is received from Customer within such 15 day period, then changes to the Other Addenda will become effective without further action by the Parties upon expiration of such 45 day period. Upon Otava’s receipt of an Amendment Objection Notice, the Parties will negotiate, in good faith, an appropriate Other Addenda accommodation and will document any agreed upon Other Addenda accommodation in a writing that will be signed by an authorized representative of each of Otava and Customer. If the Parties cannot agree upon a mutually acceptable Other Addenda accommodation within 30 days of Otava’s receipt of Customer’s Amendment Objection Notice, then the Parties may terminate this EULA in accordance with Section 6.2.1 (Termination for Convenience). For the avoidance of doubt, the modified Other Addenda terms will not go into effect for Customer during the notice and discussion periods contemplated in this Section 11.14. No amendment or modification unilaterally offered or proposed by Customer will be valid or binding upon Otava unless such amendment or modification specifically refers to this EULA, is in writing, and is signed by an authorized representative of each Party. Further, any purported terms or conditions that Customer includes with its orders, invoices, purchase orders, or other accounting statements, whether delivered by Customer prior to or subsequent to this EULA are hereby expressly rejected and will not amend or modify this EULA and will not be deemed to be an addendum hereto.
Any document that comprises this EULA and that requires signature by the Parties may be executed in two or more counterparts, each of which will be deemed an original, but all of which, when taken together, will constitute one and the same instrument. Any such document may be executed using electronic signatures, and such electronic signatures will be deemed to constitute original signatures. Transmission by fax or email of an executed counterpart to any such document will be deemed due and sufficient delivery of such counterpart, and a photocopy of an executed counterpart sent by fax or email may be treated by the Parties as a duplicate original. A copy of a Party’s signature will be deemed to be its original signature for all purposes hereunder.
Capitalized terms defined in the singular include the plural and vice versa. Unless the context suggests otherwise, the words “include”, “includes”, and “including” mean include, includes and including “without limitation”. All references in this instrument to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of these EULA Terms unless otherwise noted. Reference to and the definition of any document will be deemed a reference to such document, including any schedules or exhibits thereto, as it may be amended, supplemented, revised, or modified. The Section headings appearing in this EULA are inserted for convenience only and in no way define, limit, construe, or describe the scope or extent of such Section or in any way affect such Section.
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is an addendum to and is hereby incorporated into that certain Customer End User License Agreement (“EULA”) and applies on the Effective Date to Customer’s use and receipt of Services. THIS SERVICE LEVEL AGREEENT IS A binding agreement between Customer and Otava, LLC (“Otava”) and applies on the Effective Date to Customer’s use and receipt of the Services. Capitalized terms used in this SLA but not otherwise defined in this SLA, will have the meaning attributed to such terms in the EULA.
means collectively and individually, the DPaaS Commitment, DRaaS Commitment, Network Availability Commitment, Power Availability Commitment, and Server Availability Commitment.
means a maintenance event intended to prevent or correct the failure of any component or system that is used to provide services to Otava Customers.
means the interruption or unavailability of a Service as further set forth in this SLA and includes DPaaS Downtime, DRaaS Downtime, Network Downtime, Power Downtime, and Server Downtime. Downtime does not include Downtime Exclusions.
means, collectively, Critical Maintenance and Planned Maintenance.
means a planned maintenance event that may cause a Service component provided to Customer to become interrupted or unavailable.
means that certain percentage of the applicable Service fee as set forth in this SLA for the specific Service component that may be credited to Customer’s account in accordance with this SLA.
means https://status.otava.com, or such other url for status updates as Otava may provide.
means https://support.otava.com, or such other url for support issues as Otava may provide
The terms in this Section 3 apply to all Otava services contemplated in this SLA and are in addition to any service level terms that may be set forth in this SLA for specific Otava service components, provided that any such additional service level terms are limited to the specific service component referenced in the relevant section.
Otava will provide technical support to Customer via e-mail, telephone, and online chat 24 hours a day, 7 days a week, provided that Customer understands that Otava may have limited staff availability during holidays. To initiate a support ticket, Customer may call Otava at the designated support phone number or submit a support request via the Support Portal. Only those individuals who are listed as authorized individuals in the Support Portal or those individuals who such authorized individuals expressly designate in writing (via e-mail or by submitting a ticket in the Support Portal) may receive support from Otava. Customer sets the initial severity level of a support issue in reporting to Otava. Otava may downgrade the severity level according to Customer’s information and Otava’s discoveries during the problem resolution efforts. The support issue severity will determine the response levels within Otava. The description, response times, and responsibilities are as follows:
|Severity 1: Critical
|Service or production outage, significant risk of outage, or a significant impact on mission critical functions
|Within 1 hour
|Within 3 hours (quarter hour updates)
|Severity 2: High
|Degraded Services or production or there is a Services outage and a workaround may be available
|Within 2 hours
|Within 6 hours (hourly updates)
|Severity 3: Medium
|Non-critical environment degradation, non-critical systems degradation, or single user is impacted
|Within 4 hours
|Within 48 hours (four-hour updates)
|Severity 4: Low
|General questions, a low impact issue, documentation issue, changes or moves, or scheduled or planned work
Initial response indicates the time from the creation of the ticket until Otava has the relevant Service restored, provides a status update on the impact on services, provides information about a workaround, or determines that a software or third‑party vendor fix is required. Resolution target indicates the time from the creation of a ticket until Otava has a long‑term fix and maintenance is fully completed to deploy a fix or avoid a workaround. Customer understands that the resolution target is an estimate and may be impacted by multiple factors that are outside the direct control of Otava, including, without limitation, Customer’s failure to respond to Otava’s inquiries, Customer staffing, and the like. Resolution target does not apply when a software or third-party vendor fix is required.
Customer may view the availability of Otava’s services at any time by visiting the Statuspage. Otava will notify Customer about Maintenance Events by posting a notice on the Statuspage. Customer will ensure that its relevant workforce members subscribe to the Statuspage to receive Services related notices and updates, including about Maintenance Events. In general, Otava provides notice of (a) Planned Maintenance approximately 5 calendar days prior to the Planned Maintenance; and (b) Critical Maintenance approximately 24 hours prior to the Critical Maintenance. Customer understands and acknowledges that circumstances may arise where Otava may provide less or no notice about a Maintenance Event and in such circumstances, Otava will provide as much notice as reasonably feasible in light of the circumstances and will provide prompt updates on the Statuspage. During any Maintenance Event, Otava will make commercially reasonable efforts to ensure that Customer does not experience a Downtime event to any of the Services. Otava will make commercially reasonable efforts to ensure that Maintenance Events are scheduled during off-peak hours.
Downtime does not include interruption or unavailability (this Section 3.4 collectively, as the “Downtime Exclusions”):
If Customer experiences a Downtime event that results in Otava missing a relevant Commitment for the applicable Service component, Customer may be eligible to receive Service Credits for such missed Commitment. Service Credits are applied towards future payments for the relevant Service component. To be eligible to receive Service Credits, (a) the relevant Otava service must be identified as a Service line item on the relevant Sales Order; (b) Customer must be in material compliance with the MSA; and (c) Otava must be able to confirm the Downtime event.
To claim Service Credits, Customer must open an Otava trouble ticket through the Support Portal and request the Service Credits. All Service Credits tickets must be submitted to Otava within 30 calendar days of Customer experiencing the Downtime event. All Downtime is measured from the time the Downtime incident occurred (as recorded by Otava’s system) to the time Otava is able to resolve the reported incident, to the extent Otava can confirm that the issue exists.
Service Credits apply only to the monthly fees paid for the Service component for which a Commitment has not been met in accordance with this SLA. In no event will the Service Credits awarded (a) during any billing month for the relevant Service component exceed the monthly recurring fee billed to Customer by Otava for that billing month for that Service component; (b) for any single Downtime event exceed the monthly recurring fee billed to Customer by Otava for the relevant billing month; or (c) during any billing month, exceed 100% of the monthly recurring fees billed to Customer by Otava for the relevant billing month. Customer may not sell or transfer Service Credits and may not unilaterally offset the monthly Services fees for any performance or availability issues. Service Credits and Customer’s right to terminate the affected Service component in the event of a Chronic Service Interruption are Customer’s sole and exclusive remedies for any performance or availability issues for any Services under the MSA. Further, Service Credits are not available for (i) Services that are not affected by a Downtime event; or (ii) third‑party services that are being purchased through Otava (e.g., third-party public cloud).
Otava reserves the right to modify this SLA during the Services Term upon 30 days advance written notice to Customer, which notice may be provided to Customer by e-mail to the individual identified as the Buyer in the Support Portal or by posting a notice of the update in the Support Portal or on the Statuspage. If within 60 days of receipt of such SLA change notice, Customer determines, in Customer’s reasonable discretion, that the proposed change has a material effect on Customer’s business or operations, Customer will provide written notice to Otava within such 60-day period, which notice will include sufficient detail regarding such material impact. Upon Otava’s receipt of such notice, the Parties will negotiate, in good faith, an appropriate SLA accommodation and will document any agreed upon SLA accommodation in a writing that will be signed by an authorized representative of each Party. If the Parties cannot agree upon a mutually acceptable SLA accommodation within 90 days of Otava’s receipt of Customer’s written SLA notice, then Customer may, upon 90 days advanced written notice to Otava, cancel the Service component(s) for which Otava is amending the SLA. For the avoidance of doubt, the modified SLA will not go into effect for Customer during the notice and discussion periods contemplated in this Section 3.6.
The terms of this Section 5 apply only if Customer’s Sales Order includes Internet Bandwidth Services as a line item.
Otava makes the following Commitment with respect to the Internet Bandwidth Services: Otava’s network will be available (a) 99.9% of the time during each calendar month of the relevant Services Term for a Standard (Non-HA) Configuration; and (b) 100% of the time during each calendar month of the relevant Services Term for a High Availability Configuration (collectively, the “Network Availability Commitment”). Network downtime occurs when Customer is unable to transmit and receive data from the Internet caused by the failure of network equipment managed and either owned or leased by Otava (the “Network Downtime”), and such downtime is measured in accordance with Section 3.5.2 (Procedure for Claiming Service Credits).
In addition to the other Downtime Exclusions set forth in this SLA, the following events will also be considered as “Downtime Exclusions” for purposes of calculating Service Credits for missing any Network Availability Commitment: (a) unavailability of the services or software running on the server; (b) unavailability of the server’s hardware; (c) unavailability caused by denial of service attacks, hacker activity, or other malicious activity targeted against Customer; (d) unavailability of the Services due to Customer misuse, Customer equipment failure, application programming, non-performance, or other negligent or unlawful acts committed by Customer or its agents or vendors; (e) network unavailability outside of Otava’s server network; (f) unavailability caused by failure of Customer’s access circuits to the Data Center, unless such failure is caused solely by Otava; or (g) unavailability of the Services due to a change made by Otava at the express request or instruction of Customer.
If the Network Availability Commitment falls below the applicable level specified in Section 5.1 (Commitment) during a calendar month and Customer experiences Network Downtime during such incident for any reason other than a Downtime Exclusion, then, subject to Customer’s compliance with the terms of this SLA (e.g., submitting a ticket in the Support Portal), Otava will apply the following Service Credits to Customer’s account: (a) an initial Service Credit of an amount equal to 5% of the monthly recurring Service fees for the affected Service for the relevant calendar month; and (b) additional Service Credits of 5% (of the monthly recurring Service fees for the affected Service for such calendar month) each for each additional full hour of Network Downtime for such calendar month.
The terms of this Section 6 apply only if Customer’s Sales Order includes Dedicated Server or Dedicated SAN Services or Virtual Private Cloud Server Services as a line item.
Otava makes the following Commitment with respect to the Dedicated Server or Dedicated SAN Services and the Virtual Private Cloud Server Services, as applicable (the “Server Availability Commitment”):
Promptly within a hardware failure, Otava will, as it may determine in its sole discretion, repair or replace any failed hardware component and restore the operating system to its original operating system configuration or replace the entire Dedicated Server or Dedicated SAN.
The Virtual Private Cloud Server Services will be available 100% of the time during each calendar month of the relevant Services Term.
Server downtime occurs when a Customer’s server is shut down due to a component failure (“Server Downtime”), and such downtime is measured in accordance with Section 3.5.2 (Procedure for Claiming Service Credits), subject to Section 5.5 (Additional Terms).
For the avoidance of doubt, the Downtime Exclusions set forth in Sections 3.4 (Downtime Exclusions) also apply to this Section 5.
If the Server Availability Commitment falls below the level specified in Section 5.1 (Commitment) during a calendar month for any reason other than a Downtime Exclusion, then, subject to Customer’s compliance with the terms of this SLA (e.g., submitting a ticket in the Support Portal) and subject to Section 5.5 (Additional Terms), Otava will apply the following Service Credits to Customer’s account: (a) an initial Service Credit for an amount equal to 5% of the monthly recurring Service fees for the affected Service for the relevant calendar month; and (b) additional Service Credits of 5% (of the monthly recurring Service fees for the affected Service for such calendar month) each for each additional full hour of Server Downtime for such calendar month.
If Customer’s Sales Order includes Dedicated Server or Dedicated SAN Services as a line item, then Customer understands that (a) the hardware replacement contemplated in Section 6.1.1 (Dedicated Server or Dedicated SAN Services) only applies to the replacement of the failed hardware; (b) Otava may re-load the operating system and applications and apply any applicable data restorations and backups if necessary, provided that the time to perform such activities does not count toward the Server Downtime calculation; and (c) once the hardware is installed, the hardware failure (i.e., the Server Downtime) incident timer is stopped, and Customer is not entitled to any further Service Credits.
The terms of this Section 6 apply only if Customer’s Sales Order includes Disaster Recovery as a Service (“DRaaS”) Services as a line item.
Otava makes the Commitments set forth in Sections 6.1.1 (Replication Network Downtime), 6.1.2 (Recovery Point Objective), and 6.1.3 (Recovery Time Objective) with respect to the DRaaS Services (collectively, the “DRaaS Commitment”) and will apply those Service Credits to Customer’s account as further set forth in such section for the relevant DRaaS Commitment Service incident (i.e., delayed replication, missed RPO, or missed RTO) (each incident, a “DRaaS Downtime”). DRaaS Downtime is measured in accordance with Section 3.5.2 (Procedure for Claiming Service Credits). The relevant Service Credit will be calculated by multiplying the identified percentage rate for the relevant DRaaS Commitment Service incident by the monthly recurring Service fees for the relevant DRaaS Service. For example, in the event Otava experiences an event that impacts DRaaS replication for 6 consecutive hours, then the relevant percentage for calculating Service Credits would be 30%. Otava will only apply Service Credits for DRaaS Services, in the event (a) the DRaaS Commitment falls below the applicable level specified in the tables set forth in Sections 6.1.1, 6.1.2, or 6.1.3; and (b) Customer experiences a DRaaS Downtime event for any reason other than a Downtime Exclusion. For the avoidance of doubt, the maximum total Service Credit for all failures of Otava to meet the DRaaS Commitment is limited to the total monthly recurring fees charge to Customer for the DRaaS Services for the month in which the failure occurs.
In the event Otava experiences an interruption to the Otava network that renders replication services of the DRaaS Services unavailable for 60 or more consecutive minutes for each single event, the Service Credits percentage rate will be as set forth in the table immediately following below:
|Duration (Consecutive Hours)
|Total Cumulative Service Credit
The recovery point objective (“RPO”) for DRaaS Services (i.e., 1 Hour RPO or 4 Hour RPO) will be specified in the Sales Order. In the event Otava experiences an interruption that causes Otava to miss the relevant RPO for any reason other than a Downtime Exclusion, the Service Credits percentage rate will be as set forth in the table immediately following below, with the amount of such Service Credits to be calculated based on the number of consecutive hours by which the RPO is delayed:
|1 Hour RPO
|4 Hour RPO
|RPO Delayed (Consecutive Hours)
|Total Cumulative Service Credit
The recovery time objective (“RTO”) for DRaaS Services (i.e., 1 Hour RTO or 4 Hour RTO) will be specified in the Sales Order. If the DRaaS Services are for a virtual machine and any built-in service functions for failover testing, planned migration, or live failover and recovery result in any virtual machine replicas failing to power on within the purchased RTO, then the Service Credits percentage rate will be as set forth in the table immediately following below, with the amount of such Service Credits to be calculated based on the number of consecutive hours by which the RTO is delayed.
|1 Hour RTO
|4 Hour RTO
|RTO Delayed (Consecutive Hours)
|Total Cumulative Service Credit
In addition to the other Downtime Exclusions set forth in this SLA (including, without limitation, those set forth in Sections 3.4 (Downtime Exclusions), 4.2 (Additional Downtime Exclusions), 4.2 (Additional Downtime Exclusions), and 6.3 (Additional Downtime Exclusions)), the following events will also be considered as “Downtime Exclusions” for purposes of calculating Service Credits for missing any DRaaS Commitment:
In connection with the DRaaS Services, Customer will (a) promptly, within purchasing the DRaaS Services, coordinate with Otava to schedule a meeting to develop a DRaaS plan, reasonably cooperate with Otava to develop such plan, and review and update the DRaaS plan on an as needed basis, but no less than once every 6 months during the DRaaS Services Term; (b) if DRaaS Services include virtual machines, then ensure new virtual machines are placed into appropriate protection groups or request inclusion by submitting a service ticket to Otava via the Support Portal; (c) promptly notify Otava of any changes in Customer’s on-premises infrastructure that may impact replication or otherwise impact Otava’s ability to meet the relevant DRaaS Commitment and, as needed, purchase additional DRaaS related resources from Otava to accommodate Customer’s infrastructure changes; (d) promptly notify Otava of any virtualization or network maintenance that may impact replication or otherwise impact Otava’s ability to meet the relevant DRaaS Commitment; (e) conduct a disaster recovery test no less than once every 6 months during the DRaaS Services Term and coordinate with Otava to conduct such failover tests as reasonably necessary or otherwise requested by Otava; and (f) maintain and timely update Customer’s on-premises infrastructure to permit Otava to meet the relevant DRaaS Commitment(each of (a) – (f), a “Customer DRaaS Obligation”).
Customer understands that in the event a failover is intended to remedy a security related issue (e.g., malware, virus, ransomware, or other vulnerability), the failover will not be effective unless the previous checkpoint is clean and does not contain the vulnerability.
The terms of this Section 7 apply only if Customer’s Sales Order includes Data Protection as a Service (“DPaaS”) Services as a line item.
Otava makes the Commitment set forth in the table in this Section 7.1 with respect to the DPaaS Services (collectively, the “DPaaS Commitment”). DPaaS downtime occurs when any of the following events directly impacts a DPaaS job: (a) any Network Downtime that renders backup or restore services unavailable for more than 12 consecutive hours; or (b) any storage downtime that renders backup or restore services unavailable for more than 12 consecutive hours (each incident, a “DPaaS Downtime”). DPaaS Downtime is measured in accordance with Section 3.5.2 (Procedure for Claiming Service Credits). The relevant Service Credit will be calculated by multiplying the identified percentage rate for the relevant total cumulative Service Credit set forth in the table below by the monthly recurring Service fees for the affected Service. Otava will only apply Service Credits for DPaaS Services in the event (i) the DPaaS Commitment falls below the applicable level specified in the table set forth in this Section 7.1; and (ii) Customer experiences a DPaaS Downtime event for any reason other than a Downtime Exclusion. For the avoidance of doubt, the maximum total Service Credit for all failures of Otava to meet the DPaaS Commitment is limited to the total monthly recurring fees charge to Customer for DPaaS Services for the month in which the failure occurs.
|Duration (Consecutive Hours)
|Total Cumulative Service Credit
In addition to the other Downtime Exclusions set forth in this SLA (including, without limitation, those set forth in Sections 3.4 (Downtime Exclusions), 4.2 (Additional Downtime Exclusions), and 5.3 (Additional Downtime Exclusions)), the following events will also be considered as “Downtime Exclusions” for purposes of calculating Service Credits for missing any DPaaS Commitment:
interruption or unavailability caused by Customer’s bandwidth provider experiencing throughput or latency issues or Customer’s bandwidth levels not supporting the change rate of replicated virtual machines;
interruption or unavailability caused by a backup test conducted by Customer, its agent, or Otava at the request of Customer;
interruption or unavailability caused by (i) Customer making changes to its network or core routing infrastructure (e.g., IP changes, adding new equipment), which cause a break in the backup or are otherwise not compatible with the backup technology used, or (ii) Customer making other environment changes, including, without limitation, power off, HA event, firewall rules, IPS blocking/exclusions, or web application firewall;
interruption or unavailability caused by Customer upgrading host to outside of the compatibility of the backup technology used;
interruption or unavailability caused by Customer adding or rebuilding a server and not installing the agent or submitting a ticket via the Support Portal, at least 24 hours in advance of the required installation, for Otava to install the agent; or
interruption or unavailability caused by (i) Customer’s failure to meet a Customer DPaaS Obligation; or (ii) the malware and virus exception contemplated in Section 7.3.2.
In connection with the DPaaS Services, Customer will (a) install an Otava provided software agent for the duration of the DPaaS Services Term; (b) select a backup window when backup jobs will be started for each server protected with the DPaaS Services; (c) ensure that there is no application or other user controlled activity (e.g., open file) that inhibits the backup job; (d) promptly notify Otava of any virtualization or network maintenance that may impact replication or otherwise impact Otava’s ability to meet its DPaaS Commitment; and (e) conduct a recovery test of the backups no less than once every 6 months during the DPaaS Services Term and coordinate with Otava to conduct such additional tests as reasonably necessary or otherwise requested by Otava (each of (a) – (e), a “Customer DPaaS Obligation”).
Customer understands that in the event a restore is intended to remedy a security related issue (e.g., malware, virus, ransomware, or other vulnerability), the failover will not be effective unless the previous checkpoint is clean and does not contain the vulnerability.