Last revised: 07/10/23
These Otava Managed Azure Services – Product Terms of Use (“Product Terms”) are entered into by and between Otava, LLC (“Otava”) and the Client, on the effective date set forth in the Sales Order (“Effective Date”). These Product Terms contain additional terms and conditions specific to Otava Managed Azure Services and are not intended to replace or supersede the Master Agreement between Parties, unless expressly agreed upon in writing by both Parties. Client understands that these Product Terms are legally binding upon Client where Client’s Sales Order includes Otava Managed Azure Services as a line item, and Client agrees to be bound thereby. Otava and Client are referred to herein collectively, as the “Parties” and individually, each a “Party.”
2.1. “Agreement” means the Master Agreement entered into between Parties, as applicable, together with these Product Terms, Statements of Work, if any, and all product-specific terms linked to or referenced in the Agreement.
2.2. “Azure” means that certain software and technology cloud based platform offered by Microsoft Corporation and marketed as Azure®, which is accessible at https://azure.com, or such other url as specified by Microsoft.
2.3. “Azure Service Level Agreement” means the terms and conditions set forth at https://azure.microsoft.com/en-us/support/legal/sla/, or such other url as specified by Microsoft, as such terms and conditions may be modified by Microsoft from time to time.
2.4. “Azure Usage Quotas” means those limits and maximum resources as set by Microsoft, which are available in that certain Azure Resource Manager made available by Microsoft as well as at https://docs.microsoft.com/en-us/azure/azure-resource-manager/management/azure-subscription-service-limits, or such other url as specified by Microsoft, as such limits and maximum resources may be modified by Microsoft from time to time.
2.5. “Client Azure Infrastructure” means that certain Client Azure infrastructure identified in the relevant Sales Order.
2.6. “Master Agreement” means The General Terms of Sale, The Master Service Agreement, or the Master Terms, as applicable, between Parties.
2.7. “Microsoft Terms” means, collectively and individually, as each of the below may be modified, reissued, and renamed by Microsoft from time to time:
(a) Microsoft Customer Agreement, which is available at https://www.microsoft.com/licensing/docs/customeragreement, or such other url as specified by Microsoft;
(b) Microsoft Azure Legal Information, which is available at https://azure.microsoft.com/en-us/support/legal/, or such other url as specified by Microsoft;
(c) Microsoft Online Subscription Agreement, which is available at https://azure.microsoft.com/en-us/support/legal/subscription-agreement/, or such other url as specified by Microsoft;
(d) Microsoft Product Terms, which are available at https://www.microsoft.com/licensing/terms/welcome/welcomepage, or such other url as specified by Microsoft;
(e) Microsoft Products and Services Data Protection Addendum, which is available at https://www.microsoft.com/licensing/docs/view/Microsoft-Products-and-Services-Data-Protection-Addendum-DPA, or such other url as specified by Microsoft;
(f) if applicable, the Microsoft HIPAA Business Associate Agreement, which is available at https://servicetrust.microsoft.com/ViewPage/MSComplianceGuideV3, or such other url as specified by Microsoft; and
(g) the Azure Service Level Agreement.
2.8. “Patches” means Windows® server security patches as they are periodically released by Microsoft.
2.9. “Sales Order” means a separately executed document that describes the Services to be performed by Otava.
2.10. “Service” means the services purchased by Client from Otava as set forth in one or more Sales Orders.
3.1. Otava Managed Azure. Otava will provide Client with management and support Services as described in these Product Terms, where Client’s Sales Order includes Client Azure Infrastructure (“Otava Managed Azure”), which will be deemed a “Service.” Unless otherwise expressly stated in the Sales Order, the Otava Managed Azure Services are limited to infrastructure-as-a-service whereby Otava will manage and support the compute resources, edge (i.e., firewall and VPN), networking, and storage of the Client Azure Infrastructure. Without limiting Section 4.2 (Client Infrastructure), Client understands and agrees that the Otava Managed Azure Services do not include and Otava will be under no obligation to provide Client with (a) any management or support of any environment or infrastructure outside of the Client Azure Infrastructure, including, without limitation, Client’s on-premise environment and infrastructure; and (b) any management of or support for the operating system or any data stored within the virtual machines stored within the Client Azure Infrastructure (“VMs”), provided that, upon Client’s written authorization (which authorization may be provided through a service ticket or email to Otava’s ticketing system), Otava will provide Patches to the VMs. Client understands that changes in the Client Azure Infrastructure may result in Client being charged additional fees. Client will, at its sole cost and expense, either provide Otava with or otherwise hereby authorizes Otava to create access credentials to the relevant Client Azure account (“Otava Designated Credentials”), with such access credentials to be unique to Otava and with all necessary rights to permit Otava to perform the Otava Managed Azure Services. Client will either exempt the Otava Designated Credentials from Client’s password reset policy or otherwise coordinate any such password reset with Otava as required by Otava to permit Otava to timely perform the Otava Managed Azure Services. From time to time, the Patches require the VMs to be rebooted. Unless otherwise expressly stated in the Sales Order for the Otava Managed Azure Services, where Otava provides reboot Services, such reboot Services are subject to the Additional Terms for WSUS Reboot Services, attached and incorporated by reference as Exhibit B. As applicable, Client acknowledges and agrees to be bound by such Additional Terms for WSUS Reboot Services.
3.2. Auto Grow. In addition to Section 4 (Additional Service Terms), Client understands that for Otava to perform the Otava Managed Azure Services, Client must also maintain a sufficient amount of Azure resources to meet Client’s infrastructure needs. Client may purchase such resources through Otava. Further, upon written request by Client (which Client may provide through a service ticket or email to Otava’s ticketing system), Otava will provide Client with Azure scale sets or auto grow services (collectively, “Auto Grow Services”), pursuant to which Otava will monitor and maintain compute resource availability for the Client Azure Infrastructure and add compute resources upon those certain functional demand parameters mutually agreed to by the Parties in writing. For the avoidance of doubt, if the Parties have not agreed to functional demand parameters, then Otava will have no obligation to provide the Auto Grow Services. Client agrees and understands that Otava can only perform the Auto Grow Services if Otava receives timely notice of a relevant capacity triggering event. Accordingly, the Parties will reasonably cooperate to implement a mutually agreeable process that will permit Otava to receive automated notice of the relevant capacity triggering event. Otava will not be liable for the Auto Grow Services or capacity limitations if relevant monitoring tools are removed, disabled, or their proper functionality is otherwise restricted or compromised or Client otherwise fails to provide Otava with timely written notice of a relevant capacity triggering event or other material change in Client’s environment. A reference in these Product Terms to Otava Managed Azure Services will include the Auto Grow Services, if applicable.
4.1. License Terms.
4.1.1. Additional Agreements. By accepting these Product Terms, (a) Client represents and warrants that Client has already agreed to the Microsoft Terms directly with Microsoft or through another reseller, and, in such event, Client will provide Otava with evidence thereof upon written request; or (b) Client agrees to the Microsoft Terms, hereby authorizes Otava to accept the Microsoft Terms on Client’s behalf, agrees that this authorization will remain in effect for the duration of these Product Terms or until earlier withdrawn by Client in writing to Otava, and authorizes Otava to accept any changes to the Microsoft Terms on Client’s behalf as may be requested by Microsoft. Otava does not control, endorse, or accept responsibility for the Microsoft Terms or any changes thereto. As between the Parties, Client is solely responsible for monitoring the Microsoft Terms for changes. Client will comply with the terms and conditions of these Product Terms as well as the Microsoft Terms. Client understands that the Microsoft Terms only apply to Azure and not to these Product Terms or any other Services delivered by Otava. Unless and solely to the extent expressly set forth in these Product Terms or the Sales Order, Otava will have no liability for and hereby expressly disclaims any responsibility for any component of Azure, including any service level obligations of Microsoft. The service level obligations for Azure are set forth in the Azure Service Level Agreement and Otava will have no liability therefor. Otava makes no representation, condition, or warranty about Azure or any of its components. Client understands that some Azure Services may include Azure Usage Quotas and that Otava has no control over the Azure Usage Quotas. Client understands that Otava may contract with one or more Microsoft resellers (“Reseller”) in connection with the Client Azure Infrastructure and the Otava Managed Azure Services hereunder and, by accepting these Product Terms, Client is authorizing Otava to authorize the Reseller to access the Client Azure Infrastructure and to share information with such Reseller and Microsoft as necessary or reasonably appropriate to permit the parties to perform the Services hereunder.
4.1.2. Restrictions. Client agrees that Client will not (a) exceed the scope of the uses permitted by the applicable Microsoft Terms; (b) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of Azure is compiled or interpreted; (c) modify, translate, or create derivative works of Azure or the Otava Managed Azure Services or any portion thereof or otherwise obstruct any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded in Azure or the Otava Managed Azure Services; (d) unless expressly authorized by Microsoft in writing, access or use the Azure service for purposes of monitoring its availability, performance, or functionality, 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 Azure environment, or, unless expressly authorized by Otava in writing, against Otava, any Otava affiliate, or any of Otava’s personnel; (e) interfere with or attempt to interfere with the proper functioning of Azure, the Otava Managed Azure Services, Otava, any Otava affiliate, or any of Otava’s personnel, including subverting or attempting to subvert embedded security controls; (f) use the Azure service in violation of any applicable laws or regulations; or (g) authorize, assist, or cause any third party, including any of Client’s affiliates or Client’s employees’, agents’, contractors’, subcontractors’, or other users to do any of the foregoing. Client agrees and understands that the restrictions in this Section 4.1.2 apply to any component of Azure or the Otava Managed Azure services that is relevant to the restriction.
4.1.3. Auditing. Otava may and may permit Microsoft or another Microsoft authorized reseller or business partner to audit Client’s use of Azure and the Azure and other Microsoft licenses attributed to the Client Azure Infrastructure. Client will and, as applicable, will ensure that its users, reasonably cooperate with all such auditing activities.
4.2. Client Infrastructure. Client understands that Client is responsible for providing and maintaining Client’s own information technology infrastructure (including, without limitation, data systems, virtual machines, network connectivity, power, backups, and the hardware) necessary to use the Otava Managed Azure Services, including, as applicable installation, configuration, and management of Client-side components of the Client Azure Infrastructure as well as within the Client Azure Infrastructure. Further, Client agrees and understands that Client remains solely responsible for (a) understanding Client’s legal and contractual obligations and ensuring that the Otava Managed Azure Services meet Client’s needs; (b) determining the scope and type of Otava Managed Azure Services Client is required to purchase from Otava to meet Client’s operational and compliance requirements and evaluating and understanding the limitations of the Otava Managed Azure Services; (c) managing the VMs at and above the operating system and the data stored therein, including, without limitation, ensuring that the applications are properly deployed and the data is encrypted at the application level, except, subject to the written authorization contemplated in Section 3.1(b) (Otava Managed Azure, patches), the Patches; (d) promptly notifying Otava of any changes in Client’s on-premises or other relevant infrastructure that may impact Otava’s ability to perform the Otava Managed Azure Services and, as needed, purchasing additional Azure and Microsoft resources to accommodate Client’s infrastructure changes; (e) promptly notifying Otava of any Client Azure Infrastructure environment maintenance to be performed by Client or a Client vendor (other than Microsoft) that may impact Otava’s ability to perform the Otava Managed Azure Services, including the Auto Grow Services; and (f) maintaining the Otava Designated Credentials, a sufficient number of Microsoft licenses as may be required by Microsoft, and with sufficient license rights and permissions, it being understood that Client’s failure to maintain active and correct licensing and permissions with Microsoft will interfere with Otava’s ability to perform the Otava Managed Azure Services.
4.3. Client Users. Client acknowledges and agrees that, as between Client and Otava, (a) Client will be responsible for all acts and omissions of Client’s users; and (b) Client is solely responsible for and will, at Client’s own expense: (i) to the extent required by applicable law, notify applicable users that their personally identifiable information is accessed, collected, stored, transmitted through, or otherwise used by Otava and its vendors (including, without limitation, the Reseller and Microsoft); (ii) notify applicable users that their personally identifiable information may be disclosed to law enforcement or other governmental authorities; (iii) obtain all third party consents and authorizations with respect to the data Client stores within the Client Azure Infrastructure as necessary or reasonably appropriate for Otava to perform the Otava Managed Azure Services in accordance with the Agreement and to ensure that Otava can comply with all applicable laws in providing the Otava Managed Azure Services; and (iv) respond to and otherwise manage consumer requests, if any, related to the data Client stores within the Client Azure Infrastructure, including without limitation in compliance with applicable law. Client will cause its users to comply with the applicable provisions of the Agreement and the Microsoft Terms and understands that a breach of the Microsoft Terms by Client or its users will be a material breach of these Product Terms. Client agrees and understands that Client, and not Otava, is responsible for managing whether Client’s users are authorized to access and use the Otava Managed Azure Services and the Client Azure Infrastructure, and Otava will have no obligations relating thereto.
4.4. Disclaimers. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION 4.4 ARE IN ADDITION TO AND NOT IN LIEU OF ANY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN ANY OTHER TERMS OF THE AGREEMENT. Client understands that Otava did not create or design Azure and, accordingly, Client agrees that Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in Azure. Microsoft may change and remove features and functions of Azure and (a) Client will not be entitled to any refund, credit, or other compensation as a result thereof, and (b) Otava will not be liable for any such changes or removals or any issues arising therefrom or as a result thereof. Further, Client agrees and understands that (i) Otava is not responsible for the quality of and does not independently test the Patches; (ii) Patches may, from time to time, interfere with the functions and functionality of applications and other services running or installed on the VMs or the Client Azure Infrastructure; and (iii) Client is solely responsible for creating, maintaining, scheduling, and testing backups and, if needed, rolling back the Patches or otherwise restoring the impacted VMs. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OTAVA, ITS RESELLERS, LICENSORS, AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DISCLAIMER SET FORTH IN THIS SECTION 4.4 WILL APPLY WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), PRODUCT LIABILITY, COURSE OF DEALING, OR OTHERWISE, AND REGARDLESS OF WHETHER OTAVA, ITS RESELLERS, LICENSORS, OR SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
In addition to the Azure usage fees, and the fees set forth in the Sales Order, Client understands that Otava may charge Client additional fees for: (a) technical support for Client’s on-premise information technology environment, including for troubleshooting the functionality of Client’s on-premise to cloud network connectivity; (b) technical support to the extent the relevant issue was caused by Client or Client’s on premise information technology environment; (c) third-party vendor fees attributable to Client, including, without limitation, any fees Microsoft charges for egress; and (d) any other services that Otava provides (including, without limitation, additional bandwidth, compliance support, services at other Otava data centers, third-party software licenses, and so forth) and that are not expressly identified as a line item in a Sales Order in effect between the Parties. Unless otherwise set forth in the Sales Order, (i) all such additional fees will be charged to Client at the then current rates for the relevant Services and in the subscription manner generally charged (e.g., per license, based on consumption, and so forth); and (ii) any technical support Services provided by Otava will be provided on a time and materials basis at Otava’s then current technical support rates, provided that Otava will provide Client with written notice prior to undertaking work that will result in any such fees.
6.1. Termination. Notwithstanding anything to the contrary in these Product Terms or any other term in the Agreement, Client’s and its users’ use of the Otava Managed Azure Services will terminate on the earlier of the expiration or termination of (a) these Product Terms; (b) an applicable agreement between Otava and Microsoft, in which case Otava will provide prompt written notice to Client as applicable; (c) an applicable agreement between Otava and the Reseller, in which case Otava will provide prompt written notice to Client as applicable, except that the terms of this Section 6.2(c) will not apply if Otava transitions to another Microsoft authorized reseller; or (d) the Microsoft Terms.
6.2. Obligations Upon Termination. Client understands that transition of any Azure Services is subject to process requirements from, delays by, and may require approval from Microsoft and that Client should plan accordingly. Client agrees to pay Otava at Otava’s standard support rates to provide transition services. Further, Client understands that Client will remain responsible for Azure usage fees as well as the other fees contemplated in Section 5 (Fees) for so long as Otava provides any services hereunder, including, without limitation, transition services.
7.1. Trademarks and No Affiliation. Azure®, Microsoft®, and Widows® are trademarks of Microsoft Corporation (“Microsoft”). Otava is not affiliated with or sponsored by Microsoft and the Otava Managed Azure Services are not authorized, approved, or co-branded by Microsoft. Nothing in these Product Terms grant Client the right to use any of Microsoft’s trademarks or other source indicators. All other trademarks and source indicators are the property of their respective owners.
7.2. Additional Terms for Older MSAs. Additional Terms for Older MSAs set forth as Exhibit A and incorporated by reference supplement and are made part of these Product Terms only if the Parties entered into a Master Agreement on or before July 1, 2022 or the version of the Master Agreement in effect between the Parties as of the Product Terms’ Effective Date is a Master Agreement prior to version 2022-2.0.
7.3. Survival. The provisions of Sections 1 (General), 4.1 (License Terms), 4.3 (Client Users), 4.4 (Disclaimer), 5 (Other Fees), 6.3 (Obligations Upon Termination), and 7 (General Terms) will survive the termination of these Product Terms.
The terms in this Additional Terms for Older MSAs Exhibit (“Exhibit”) supplement are made part of the Otava Managed Azure Services – Product Terms of Use to which this Exhibit is attached only if the Parties entered into an MSA on or before July 1, 2022 or the version of the MSA in effect between the Parties as of the Product Terms’ Effective Date is an MSA prior to version 2022-2.0. Capitalized terms used in but not otherwise defined in this Exhibit will have the meaning attributed to such terms in the Product Terms.
2.1. “Addenda” means collectively all executed Sales Orders and all applicable addenda or service specific terms linked to or refenced in the Agreement, a Sales Order, or subsequently agreed to by the Parties (each an “Addendum”).
2.2. “Administrator Data” means the information provided to Otava or otherwise received by Otava during sign up, purchase, or administration of the Services for Client. Administrator Data does not include Client Data, Feedback, or Usage Data.
2.3. “Authorized Contact” has the meaning attributed to such term in the MSA, and if not defined, then has the meaning set forth in Section 3.1 (Contacts).
2.4. “Billing Start Date” has the meaning attributed to such term in the MSA, and if not defined, then means the earlier of (a) the date Otava makes the applicable Service(s) available to Client for Client’s use, or (b) 30 days after executing a Sales Order.
2.5. “Client Data” means the data, information, and materials that Client stores, transmits through, or uploads into the application layer of the Services.
2.6. “Client Personnel” has the meaning attributed to such term in the MSA, and if not defined, then means, collectively and individually, employees, agents, contractors, subcontractors, service providers, and Authorized Contacts. Client Personnel does not include Otava.
2.7. “Limitations” 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 Sales Order.
2.8. “Minimum Commitment” has the meaning attributed to such term in the MSA, and if not defined, then means Client’s commitment to pay a minimum charge for the Services, regardless of actual usage or other factors.
2.9. “Portal” means the certain web based portal that Otava may make available to Client to access and manage the Services, including adding user roles, purchasing additional Services, and submitting service tickets.
2.10. “Support Portal” means https://support.otava.com, or such other url for support issues as Otava may provide.
2.11. “Third Party EULA” has the meaning attributed to such term in the MSA, and if not defined, then has the meaning set forth in Section 4.3 (Third Party Products). Third Party EULA includes the Trend Micro EULA.
2.12. “Third Party Product” has the meaning attributed to such term in the MSA, and if not defined, then 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 or Trend Micro Incorporated.
2.13. “Third-Party Vendor” means a third-party product or service provider that is not identified as a Party to the MSA.
3.1. Contacts. Client will use the Portal to designate, change, and otherwise manage various access roles for Client and the Client Personnel (each an “Authorized Contact”) in connection with the Services. Client agrees that Otava will be permitted to act and rely on the direction and instructions of the Authorized Contact, unless and until Client revokes the relevant individual’s access role. If Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority, Client must do so through the Portal.
3.2. Cooperation. Client understands and acknowledges that Otava cannot perform the Services without the assistance and cooperation of Client Personnel. Accordingly, Client will: (a) cooperate, in good faith, with Otava with respect to activities necessary or reasonably appropriate for Otava to provide Services including, without limitation, cooperating with Otava to schedule maintenance required for major system upgrades as applicable; (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 the Agreement, 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 Client Personnel to reasonably assist Otava with respect to the activities as they relate to the Services; and (d) reasonably facilitate and hereby authorize the communication between Otava and Client Personnel, as necessary or reasonably appropriate for Otava to deliver the Services. Client understands that for Otava to meet certain audit obligations, maintain compliance certifications, or address software and systems obsolescence, Otava must perform certain patching, updates, and upgrades to systems and technologies managed by Otava, some of which may be included in or otherwise impact Client’s Services. Accordingly, notwithstanding anything to the contrary in this Section 3.2 or any other term in the Agreement, Otava reserves the right to perform any and all patching, updates, and upgrades to the systems and technologies managed by Otava, as determined by Otava in its sole discretion and without further approval from or liability to Client, provided that Otava will provide Client with prompt (as reasonable under the circumstances) written notice (which notice may be provided by email, a service ticket, or by posting in the Portal) of such patches, updates, and upgrades.
3.3. Access to Client Systems. Client agrees and understands that to perform the Services, Client may need to make available to Otava access to Client’s information technology resources, data systems, virtual machines, third-party software and hardware, and related resources from the Client-side environment (collectively, the “Client Systems”). As between Client and Otava, Client will, at its expense, take the necessary steps (including, without limitation, obtaining all authorizations, consents, licenses, and sublicenses) to make available to Otava the Client Systems that Otava may require or reasonably request to provide the Services. As between Client and Otava, Client is solely responsible for the Client 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.
3.4. Configuration, Management, and Monitoring. Otava may provide Client with certain deployment, management, and support Services as described in one or more Sales Orders, provided, however, Client agrees and understands that Client remains solely responsible for (a) understanding Client’s legal and contractual obligations and ensuring that the Services meet Client’s needs; (b) evaluating and understanding the limitations of the Services; (c) determining the scope and type of Services Client must purchase from Otava to meet Client’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 Client-side components of the Services, including, for example, periodically testing backups if Client’s Services include backup services; € properly configuring, managing, updating, and upgrading the applications and related services hosted by Client 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 Client-side system component), and properly administering the Client-side environment to ensure that Client’s compliance objectives are achieved and legal obligations are met; (f) timely reviewing and assessing any alerts, logs files, and reports in accordance with Client’s policies and otherwise properly monitoring the Services and the activities of the Client Personnel and other end users on the Services; and (g) training the Client Personnel on the scope of Otava’s Services and Client’s obligations. Client understands that Client is solely responsible for all actions and activities taken or not taken, as the case may be, under access credentials assigned to Client and the Client Personnel in connection with the Services. Further, Client agrees and understands that Client, and not Otava, is responsible for managing whether the Client Personnel are authorized to access or use the Services and Otava will have no obligations relating thereto.
3.5. Consents and Authorizations. As between the Parties, Client is solely responsible for and will, at Client’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 Client Data as required by applicable law; and (c) obtain all third party consents and authorizations with respect to the Client Data as may be necessary or reasonably appropriate for Otava to perform the Services in accordance with the Agreement and to ensure that Otava can comply with all applicable laws in providing the Services. Otava will, at Client’s expense, (i) reasonably assist Client, as needed, to cooperate with and respond to requests from auditors, insurance carriers, regulators, consumers, customers, and others to provide information related to Otava’s processing of the Client 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 Client Data), discovery requests, ediscovery, affidavits, subpoenas, and other litigation or legal proceeding support services related to the Administrator Data, Client Data, or the Services (this Section 3.5(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 Client 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 Client 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.
4.1. Administrator Data. As between Client and Otava, Client owns the right, title, and interest in and to the Administrator Data, except for the limited rights granted in the MSA and subject to applicable third party licensor rights in the Administrator Data. Client hereby grants Otava 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 and to otherwise fulfill Otava’s obligations under the MSA; 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 Otava’s internal business purposes, legal compliance, and record keeping, including, without limitation, developing anonymized benchmarks and metrics, provided that Otava will use commercially reasonable efforts to ensure that use of Administrator Data does not individually identify Client or any Client employees.
4.2. Client Data. As between Client and Otava, Client owns the right, title, and interest in and to the Client Data, except for the limited rights granted in the Agreement. Client hereby grants Otava a fully paid, limited, nonexclusive, royalty-free right and license during the term of the Agreement and for the duration of any transition period, to copy, display, host, process, store, and transmit the Client Data for the purpose of delivering the Services, including, without limitation, Client’s and Client Personnel’s access and use of the Third Party Products, and to fulfill Otava’s obligations under the Agreement.
4.3. Third-Party Products. Otava may make certain Third-Party Products available to Client in connection with or to use directly with the Services (e.g., Microsoft Server licenses) or use of the Services may require a license to and use of Third-Party Products (e.g., Veeam backup software). Client agrees and understands that Client’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) endorse the Third-Party Products; or (b) control or accept responsibility for the Third Party Products, except to the extent Otava is designated as being either “Responsible” or “Accountable” in an applicable RACI Matrix for the Otava Security Services. Any and all agreements, services, and transactions between Client 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 Client and such Third-Party Vendor. Client understands that Otava did not design the Third Party Products and, accordingly, Client 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, Client will have the right to review the Third-Party EULA for any Third-Party Products upon Client’s request and prior to executing the applicable Sales Order. If the Agreement or an applicable Sales Order is terminated for any reason, Otava will have no responsibility or liability to Client for the cost of any such Third-Party Products. Unless otherwise provided in the Third-Party EULA, the rights granted to Client in the Third Party EULA are solely for Client’s use in connection with the Services and will terminate on the earlier of expiration or termination of (i) the Agreement; (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 Client (which notice may be provided by email, a service ticket, or by posting in the Portal), 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, Client grants Otava permission to allow the licensors of such Third-Party Products to access and use the Administrator Data and Client Data as required or reasonably appropriate for the purpose of delivering the Third Party Products to or for Client and the Client 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 3.5 (Consents and Authorizations), Client will, at its own expense, obtain all consents and permissions from its employees and other relevant end users as necessary and appropriate to grant the rights granted in this Section 4.3.
4.4. Otava Proprietary Rights. Client acknowledges and agrees that Client 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 the Agreement or during the Agreement but in connection with performing services for another client. As between Client and Otava, Otava will retain and Client acknowledges that Otava hereby retains all interest, right, and title in and to the Otava Materials and nothing contained in the Agreement 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 Client. 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, without any payment to Client or any obligation of accounting.
4.5. Trademarks and Copyrights. Client 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. Client will not and will not permit any of the Client 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 Product Terms or, with respect to the Third-Party Products, in a license between Client and such Third-Party Products vendor (including any Third Party EULA).
4.6. Usage Data and Operational Information. Client 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 may include IP addresses, but does not include Client 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 with 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), and developing metrics and analytic algorithms. Client 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.
4.7. Feedback. Client agrees that submission of any corrections to content or documents, ideas, product or service improvements or modifications, or suggestions (collectively, the “Feedback”) to Otava through its feedback form, meetings, suggestion form, or similar means, is at Client’s own risk and that Otava has no obligations (including, without limitation, obligations of use) with respect to such Feedback. Client 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.
4.8. Restrictions. Otava and its suppliers retain all interest, rights, and title in and to the Portal and Otava Materials (collectively, the “Licensed Materials”) and all rights to the Licensed Materials not expressly granted to Client in the Agreement 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 the Agreement. Client 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 the Agreement, or, if applicable, access or use the Third Party Products in any way other than as expressly permitted in the Agreement 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 Client hereunder (including, without limitation, the Portal and the Third Party Products) is compiled or interpreted, and Client hereby acknowledges that nothing in the Agreement will be construed to grant Client any right to obtain or use such source code; (d) assign (except together with Client’s business if so permitted by the assignment clause in the MSA), distribute, grant a security interest in, lease, loan, rent, sell, share, sublicense, timeshare, use for service bureau purposes, or otherwise transfer (except together with Client’s business if so permitted by the assignment clause in the MSA) 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, authorize or undertake 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 Client Personnel, to do any of the foregoing. Client agrees and understands that the restrictions in this Section 4.8 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 Client and the owner of such Third Party Product.
4.9. Audits. Otava may audit Client’s use of the Services and may permit relevant Third Party Vendors to audit Client’s use of the Third Party Products and the related Services in connection with Client’s use of such Third Party Products. Client will and, as applicable, will ensure that the Client 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 Client’s regular business hours, will not unreasonably interfere with Client’s business activities, and may be conducted at Client’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.
4.10. Suspension for Security. Otava will have the right, in addition to its other rights or remedies, to suspend Client’s and the Client Personnel’s access to the Licensed Materials, Services, and the Third Party Products, without liability to Client, 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 clients; or (b) Otava does not receive the Usage Data as required, or Client 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 Client 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 Client, suspend the access credentials of the Client Personnel who violate the Agreement and may terminate the access credentials of Client Personnel who repeatedly violate the Agreement, provided that Otava will provide Client with prompt written notice (which notice may be provided by email, a service ticket, or by posting in the Portal) if Otava suspends or terminates the access credentials.
Notwithstanding anything to the contrary in the MSA, Otava may amend or modify these Product Terms by providing at least 45 days advance written notice to Client of such amendments or modifications. Notice of any such amendments or modifications to these Product Terms will be provided by email to the Authorized Contact, Otava’s primary business contact for Client, service ticket, mail, or by posting in the Portal. If Client determines, in Client’s reasonable discretion, that the proposed change to these Product Terms materially impacts Client in an adverse manner, Client will provide written notice (which notice to be provided by service ticket through the Portal) to Otava (with attention to Contract Manager) with a brief explanation of the adverse impact within 15 days (“Amendment Objection Notice”). If no Amendment Objection Notice is received from Client within such 15-day period, then changes to these Product Terms will become effective without further action by either Party 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 Product Terms accommodation and will document any agreed upon accommodation in a writing that will be signed by an authorized representative of each Party. If the Parties cannot agree upon a mutually acceptable accommodation within 30 days of Otava’s receipt of the Amendment Objection Notice and Otava does not withdraw the Product Terms amendment or modification as against Client, then a Party may, upon 30 days advance written notice to the other Party, terminate the Otava Security Services component impacted by the amendment or modification and Otava will waive any recurring monthly fees remaining under the then current Addendum Services Term for the terminated Otava Security Services component. For the avoidance of doubt, the modified Product Terms will not go into effect for Client during the notice and discussion periods contemplated in this Section 6. The provisions of 3.5 (Consents and Authorizations, limited to Compliance Support Services), 4.3 (Third Party Products), 4.4 (Otava Proprietary Rights), 4.6 (Usage Data and Operational Information), 4.7 (Feedback), and 6 (General Terms) will survive the termination of these Product Terms until any obligations arising prior to such termination have been satisfied in accordance with the applicable terms.
These Additional Terms for WSUS Reboot Services (“Additional Terms”) supplement are made part of the Otava Managed Azure Services – Product Terms of Use (“Product Terms”) to which this Exhibit is attached only if the Patches require the VMs to be rebooted pursuant to Section 3.1 of the Product Terms. Capitalized terms used in but not otherwise defined in this Exhibit will have the meaning attributed to such terms in the Product Terms.
2.1. “Excluded Devices” has the meaning set forth in Table 3.1.
2.2. “Included Devices” has the meaning set forth in Table 3.1.
2.3. “Otava Virtual Private Cloud” means the infrastructure-as-a-service infrastructure that is controlled and maintained by Otava, and made available to Client pursuant to one or more Sales Orders. Otava Virtual Private Cloud does not include any equipment, hardware, or software that operates outside of Otava’s premises.
2.4. “WSUS” means the Windows Server Update Services that are managed and operated by Microsoft®.
3.1. Background and Description. Client applies Windows® server security patches (“Patches”) as they are periodically released by Microsoft to those certain virtual machines that Client operates and stores in the Otava Virtual Private Cloud (“VMs”). From time to time, the Patches require the VMs to be rebooted. Otava will reboot the Included Devices, verify that the Included Devices respond to a Ping request, and display the Windows server login prompt (collectively, the “Reboot Services”, which will be deemed “Services” as defined in the Master Agreement). Otava will perform the Reboot Services during the Maintenance Window as defined in Table 3.1.
Table 3.1 – Reboot Services Specifications
| (A) “Maintenance Window”
|
Otava’s standard maintenance window as Otava may periodically communicate to Client via Portal or a service ticket. |
| (B) “Included Devices” | Those VMs that (i) are managed by OTManage; (ii) are listed on the Microsoft WSUS report as VMs that are pending reboot; and (iii) are not Excluded Devices. |
| (C) “Excluded Devices” | Client shall provide Otava the list of servers that must be excluded. |
3.2. Service Requirements and Limitations. Client agrees and understands that:
(a) The Reboot Services are conditioned on Client purchasing the OTManage Services from Otava.
(b) Client will, at its sole cost and expense, provide Otava with access credentials to the Included Devices (“Otava Designated Credentials”), with such access credentials to be unique to Otava and with all necessary rights to permit Otava to perform the Reboot Services. Client will either exempt the Otava Designated Credentials from Client’s password reset policy or otherwise coordinate any such password reset with Otava as required by Otava to permit Otava to timely perform the Reboot Services.
(c) Otava will document which Included Devices were rebooted as part of the Reboot Services in Otava’s support ticketing system and Client will retrieve such information from such support ticketing system as needed by Client.
(d) Client will not disable Ping and will not take any action to inhibit or otherwise compromise Otava’s ability to monitor the Included Devices from PRTG, and Client will promptly remedy any such issues upon discovery.
(e) (i) Otava is not responsible for the quality of and does not independently test the Patches; (ii) Patches and the Reboot Services may, from time to time, interfere with the functions and functionality of applications and other services running or installed on the VMs; and (iii) the scope of the Reboot Services is limited and does not extend to the applications and other services installed or running on the VMs. Accordingly, Client is solely responsible for (1)monitoring for and ensuring that the applications and other services (including, without limitation, any disaster recovery systems and services) on the Included Devices properly restart upon the Reboot Services and that such applications and services continue to function as expected; and (2) creating, maintaining, scheduling, and testing backups and, if needed, rolling back the Patches or otherwise restoring the impacted VMs.
(f) Windows server version must be a version that is supported by Microsoft. Client may purchase such licenses from Otava or from another vendor. Otava will provide Client with such licenses only if a Sales Order expressly includes such licenses as a line item.
(g) Client is responsible for ensuring that the information required in Table 3.1 is current. Any such changes to the information provided in Table 3.1 will be made only upon the express written agreement of both Parties.
(h) The Reboot Services do not include and Otava will be under no obligation to provide Client with (a) any management of or support for Client’s environment or infrastructure, including, without limitation, Client’s on-premise environment and infrastructure; and (b) any management of or support for the VMs themselves, whether such VMs are within the Otava Virtual Private Cloud or on Client’s premises and Client will remain solely responsible for managing such VMs, including ensuring that such VMs are properly deployed and otherwise configured to permit Otava to provide the Reboot Services. Further, Client understands that Client is responsible for providing and maintaining Client’s own information technology infrastructure (including, without limitation, data systems, backup systems, VMs, network connectivity, power, software licenses, and hardware) necessary to use the Reboot Services. Nothing in this Section3.2(h) will be interpreted to limit the scope of the other Services purchased by Client or Otava’s obligations in connection therewith.
4.1. Licenses and Restrictions. The Patches, the Windows server software, the WSUS, and other Microsoft software is subject to Microsoft licenses. As between the Parties, Client is solely responsible for understanding, reviewing, accepting, and complying with the terms of the relevant Microsoft licenses. Without limiting the generality of the immediately preceding sentence, Client agrees that Client will not (a) exceed the scope of the uses permitted by the applicable Microsoft licenses; (b) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of the Microsoft software, including the Patches; (c) modify, translate, or create derivative works of the Microsoft software, except as permitted by Microsoft, or otherwise obstruct any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded in the Microsoft software or the Reboot Services; (d) interfere with or attempt to interfere with the proper functioning of the Microsoft software or the Otava Virtual Private Cloud, including subverting or attempting to subvert embedded security controls; (e) use the Microsoft software in violation of any applicable laws or regulations; or (f) authorize, assist, or cause any third party, including any of Client’s affiliates or Client’s employees’, agents’, contractors’, subcontractors’, or other users to do any of the foregoing. Client agrees and understands that the restrictions in this Section 4.1 apply to any component of the Microsoft software, the Otava Virtual Private Cloud, and the Reboot Services that is relevant to the restriction.
4.2. Client Users. Client acknowledges and agrees that, as between Client and Otava, (a) Client will be responsible for all acts and omissions of Client’s users; and (b) Client will obtain and maintain any required user consents and send any required notices, each as necessary to permit Otava to provide the Reboot Services, including any technical support. Client will cause its users to comply with the applicable provisions of the Master Agreement and the Microsoft licenses. Client agrees and understands that Client, and not Otava, is responsible for managing whether Client’s users are authorized to access or use the Otava Virtual Private Cloud and the Microsoft software and Otava will have no obligations relating thereto.
4.3. Disclaimer. Client understands that Otava did not create or design the Patches or any of the other Microsoft software. Accordingly, Client agrees that Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in any such software. Client agrees and acknowledges that Microsoft may change or amend its guidelines for the Patches or WSUS at any time, and Otava will not be liable for any such changes or any issues arising therefrom or as a result thereof. Further, Client understands that the Reboot Services are dependent on the availability and performance of the WSUS, that the Reboot Services could be adversely impacted during a period in which the Microsoft environment or the components thereof are down or otherwise affected, and that Otava will not be liable for any such occurrence or adverse impact. The Reboot Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications and Otava is not responsible for (a) any delays, delivery failures, or other damages resulting from such problems or that result from or are caused by third-party products or from equipment, software, or other infrastructure that is outside the direct control of Otava; or (b) any other interruption or unavailability caused by factors outside of the commercially reasonable control of Otava.
Client understands that Otava may charge Client additional fees for: (a) technical support to the extent the relevant issue was caused by Client, Client’s information technology environment, or Microsoft software (including the Patches); (b) technical support for Client’s information technology environment, including for troubleshooting the functionality of Client’s network connectivity or PRTG monitoring; (c) managed VM recovery; and (d) any other services that Otava provides (including, without limitation, additional bandwidth, services at other Otava data centers, third-party software licenses, and so forth) and that are not expressly identified as a line item in the Sales Order or as a line item in another Addendum in effect between the Parties. Unless otherwise set forth in the Sales Order or another purchase Addendum, (i) all such additional fees will be charged to Client at Otava’s then current rates for the relevant services and in the subscription manner generally charged (e.g., per license, based on consumption, and so forth); and (ii) any technical support services provided by Otava will be provided on a time and materials basis at Otava’s then current technical support rates, provided that Otava will provide Client with written notice prior to undertaking work that will result in any such fees.
Either Party may terminate these Additional terms in accordance with and as permitted by the termination clause set forth in the main body of the Master Agreement. Termination of these Additional Terms will not result in the termination of any other Services (including, without limitation, the OTManage Services), which will remain in effect in accordance with the terms governing such other Services. If the Master Agreement expires or is terminated for any reason, these Additional Terms will also automatically terminate without any further action by either Party. In the event these Additional Terms expires or is terminated for any reason, in addition to each Party’s obligations under other parts of the Master Agreement that may apply, Client will promptly disable the Otava Designated Credentials, except to the extent such Otava Designated Credentials are needed for Otava to perform other Services that remain in effect.
Microsoft® is a trademark of the Microsoft Corporation (“Microsoft”). Otava is not affiliated with or sponsored by Microsoft. Nothing in these Additional Terms grants Client the right to use any of Microsoft’s marks. All other trademarks are the property of their respective owners. The provisions of Sections 1 (General), 4.1 (Licenses and Restrictions), 4.2 (Client Users), 5 (Other Fees), 6 (Termination), and 7 (General Terms) will survive the termination or expiration of the Product Terms until any obligations arising prior to such termination have been satisfied in accordance with the applicable terms.
