PARSEC LABS, LLC
SERVICE AGREEMENT FOR TOTAL NAS MANAGEMENT
Last Revised: October 23, 2014
PLEASE READ THIS SERVICE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE HYPERQ™ TOTAL NAS MANAGEMENT SERVICE (THE “SERVICE”). BY USING THE HYPERQ™ APPLIANCE AND/OR BY INSTALLING THE SOFTWARE ENABLING THE SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT USE THE HYPERQ™ APPLIANCE OR INSTALL THE SOFTWARE ENABLING THE SERVICE.
1.1. “Affiliate.” Affiliate shall mean a subsidiary, division or other entity in which you have a fifty (50%) percent or greater equity interest and/or control of a majority of the voting rights in such subsidiary, division or other entity.
1.2. "Cloud.”Cloud, or references to the Cloud, shall mean a communications network for data processing and storage that includes datacenter infrastructure accessed by you via the Internet from a third-party provider of such infrastructure.
1.3. "Parsec Facility.”Parsec Facility shall mean the facility where Parsec Labs operates equipment that communicates with your HyperQ™ Appliance to report problems with its functionality, maintain backups and host customer data.
1.4. "EULA.”EULA shall mean the End User License Agreement between you and Parsec Labs governing your use of your HyperQ™ Appliance.The EULA will apply to all use of any Parsec Labs Software relating to your HyperQ™ Appliance or the Service whether integrated in the HyperQ™ Appliance as firmware, or otherwise.
1.5. "HyperQ™ Appliance.”HyperQ™ appliance shall mean the special hardware product acquired by or provided to you and the Software licensed by you pursuant to the terms of the EULA.
1.6. "Managed Data.”Managed Data shall mean the applications and business data, including Personal Data, which you manage using your HyperQ™ Appliance up to the maximum quantity of such data included in your Service Level.
1.7. "Parsec Labs.”Parsec Labs shall mean Parsec Labs, LLC, a Delaware limited liability company, whose principal place of business is located at 7101 Northland Circle North, Suite 105, Brooklyn Park, Minnesota 55428 USA.
1.8. "Personal Data."Personal Data shall mean, generally, information relating to an identified or identifiable natural person, as defined by applicable privacy or data protections laws. Examples of personal data include, but are not necessarily limited to, address, credit card number, bank statements, driver’s license number, social security number, etc.
1.9.“Provided Equipment.”Provided Equipment shall mean the HyperQ™ Appliance and other computer hardware provided to you by Parsec Labs for your use with the Service.
1.10. "Quote.”Quote shall mean any form of writing issued to you by Parsec Labs setting forth the terms of the Subscription and Support you have purchased, including Service Level, pricing and payment terms. A subsequent writing setting forth changes to your Subscription as provided in Section 1.15 is a “Quote” under this Agreement. The Quote refers to this Agreement, and the terms of this Agreement are incorporated by reference into the Quote.
1.11.“Service.”Service shall mean the Total NAS Management Service described in Section 1.20, below.
1.12. "Service Level.”Service Level shall mean the maximum number of terabytes (TB) of data managed by the HyperQ™ Appliance and the maximum quantity of Managed Data stored in the Cloud covered by your Subscription and any Provided Equipment to be furnished to you.
1.13. "Site.”Site shall mean the Parsec Labs website pertaining to the Service, the current URL for which is www.parseclabs.com. Announcements and other information relevant to the Service will be posted by Parsec Labs on the Site.
1.14. "Software.”Software shall mean Parsec Labs’ proprietary software applications and their upgrades or enhancements used to provide or access the Service.
1.15. "Subscriber.”Subscriber shall mean the individual, company, jointly owned subsidiaries and their parent company, affiliates or other legal entity that subscribes to the Service by paying for a Subscription.
1.16. "Subscription.”Subscription shall mean a non-exclusive, nontransferable right to use the Service during the Subscription Term and for the Service Level, as set forth on a Quote for which you have paid the applicable fees. You may increase the Service Level or extend the Subscription Term by acceptance of a Quote setting forth the number of additional units of the HyperQ™ Appliance, quantity of Managed Data and/or the length of time of your Subscription Term and the applicable prices therefore.
1.17.“Subscription Term.”Subscription Term shall mean the period of time during which your Subscription is in effect. The Subscription Term will commence on the day on which you activate the Service and will extend for the period set forth in your Quote or, if no other period is specified, for one (1) year from the date of activation. The Subscription Term and this Agreement are subject to extension or to earlier termination as provided in this Agreement.
1.18. "Support.”Support shall mean the Parsec Labs support services available under Section 10, below.
1.19. "System Failure.”System Failure shall mean a failure of your data storage systems or that of your data center or other physical location that prevents you from operating your HyperQ™ Appliance at such location to process your business operations on a normal basis.
1.20. "Total NAS Management Service.”Total NAS Management Service shall mean the service provided by Parsec Labs to users of its HyperQ™ Appliance as described at www.parseclabs.com/solutions, providing for data management, migration and expansion to other storage devices and to the Cloud, as well as for accelerated access to data by means of an SSD cache in the HyperQ™ Appliance.
1.21. "You”and "Your.”References to you or your in this Agreement shall mean the Subscriber to the Service.
2.1. Scope of Agreement. This Agreement will apply to your use of the Service, whether you purchase your Subscription directly from Parsec Labs or from an authorized reseller.
2.2. Authority. By accepting this Agreement, you agree that you are an authorized representative of the legal entity signing up for the Subscription with the authority to bind the legal entity to its terms.
2.3. Use Conditioned on Acceptance of This Agreement. Your use of the Service is expressly limited to the terms and conditions of this Agreement. You must agree to this Agreement prior to your use of the Service.
3. TERMS OF SERVICE AND FEES.
3.1. Subscription. You will have the right to use the Service during the Subscription Term, subject to your compliance with the terms of this Agreement, including the payment of all applicable fees. During the Subscription Term, Parsec Labs will provide one or more of the HyperQ™ Appliances at your data centers necessary to provide the Service at the Service Level to which you have subscribed. Parsec Labs shall also have the right in its sole discretion to provide data storage in the Cloud in conjunction with the Provided Equipment. Parsec Labs shall also have the right in its sole discretion to determine which data centers, and which equipment in any data center, will be used for this purpose. Unless otherwise agreed in writing, all Service will automatically be deemed accepted upon receipt by you or upon your commencing to use the Service.
3.2. Availability of Service. Parsec Labs warrants that the Provided Equipment will have at all times sufficient capability to fully operate as specified in Parsec Labs policies. Parsec Labs will use its reasonable best efforts to replace damaged or nonfunctional Provided Equipment quickly and provide means to access Managed Data through standby emergency means, which means will vary based on the Service Level to which you have subscribed. Parsec Labs will allow 24 x 7 access to Managed Data in the Cloud. Any service interruption in the Cloud will be addressed immediately to ensure maximum up time of such service.
3.3. Modifications to the Service. Parsec Labs reserves the right at any time to modify the Service without prior notice. Parsec Labs will use commercially reasonable efforts to notify you of any such action that it believes may materially affect you and your use of the Service by sending you an e-mail or by posting relevant information on the Site. The Service will automatically include access to all enhancements introduced during your Subscription Term other than those that provide new functionality or capacity that has a value or utility separate from the existing version of the Service or to your Subscription and that may be priced and offered separately by Parsec Labs.
4. YOUR OBLIGATIONS.
4.1. Computing Environment. You agree that while Parsec Labs or an authorized reseller may recommend a particular Service and Service Level configuration, you are responsible for determining the Service and Service Level that meets your needs. You also understand and agree that, to the extent the information on your computing environment is inaccurate or incomplete, your computing environment changes or you desire a higher level of performance, you may need to increase your Service Level.
4.2. Settings. You understand and agree that it is your sole responsibility to properly set up and maintain the settings for the HyperQ™ Appliance and the data to be managed, including all parameters such as network settings, user settings, high- and low watermark, migration policy configuration, domain security settings, replication and expansion, as more fully described in the applicable documentation for the Service and the HyperQ™ Appliance. Parsec Labs will have no liability for any error in your selections of such settings that results in the failure of existing servers or Managed Data to be retained for any specific duration or to be restored to particular locations thereon.
4.3. Operation of the HyperQ™ Appliance. Subject to any warranty or support obligations of Parsec Labs or its resellers, it is your responsibility to ensure the correct installation, operation and maintenance of your HyperQ™ Appliance. In addition to maintaining backups of your Managed Data, you are also responsible for establishing and maintaining at your own expense all environmental, security, power and internet connections required at your facility(ies) for operation of the Service. You are also responsible for monitoring the operation of the Service, including periodic testing of the migration and expansion of your Managed Data as well as periodic testing of the acceleration at least as frequently as recommended by Parsec Labs, and you will promptly report to Parsec Labs any errors in the management of your Managed Data by web submission, email or telephone.
4.4. User Names and Passwords.You agree that it is your sole responsibility to safeguard all usernames and passwords and other access credentials for your personnel who have access to the Managed Data, the HyperQ™ Appliance or the Service and to limit access to the Service only to your authorized personnel. If you believe that the security of such access credentials has been compromised, you agree to notify Parsec Labs and to cooperate in the resetting of any such access credentials. If Parsec Labs determines that a security breach has occurred or is likely to occur, Parsec Labs may suspend your S e r v i c e until such breach has been remedied to the satisfaction of Parsec Labs.
4.5. Confidentiality of Managed Data; Encryption Keys. Parsec Labs utilizes service providers who maintain industry standard physical and technical security procedures at their data centers and permits access to the Service by any authorized user only through a firewall unique to that user. Parsec Labs provides access to that data using SSL encrypted interfaces, and such data is encrypted at rest on the service providers’ storage infrastructure. You are responsible for maintaining the confidentiality of your Managed Data at your facility(ies), for avoiding any lapses in power or communications or other actions that would compromise the connection or the security of the connection between your facility and the Parsec Facility or its service providers’ data centers and for safeguarding all encryption keys. Parsec Labs personnel will not have access to encrypted data and will not be able to recover encrypted data in the event that you lose your encryption keys.
5. PERSONAL DATA; APPLICATION OF U.S. LAW
5.1. Processing of Personal Data. You and Parsec Labs acknowledge that the Service may be used to process information regulated by privacy or data protection laws. You hereby instruct Parsec Labs to treat all Personal Data in the same manner as other Managed Data unless you expressly provide different instructions and further instruct Parsec Labs to take such steps in the processing of Personal Data as are reasonably necessary to the performance of its obligations under this Agreement. You agree that such instructions constitute your full and complete instructions as to the means by which Personal Data shall be processed by Parsec Labs. You further acknowledge that Parsec Labs has the right to access Personal Data to the extent necessary to perform its obligations under this Agreement; in such event, Parsec Labs will log all such access.
5.2. Third Party Requests and Disputes. To the extent that any privacy or data protection laws impose an obligation upon Parsec Labs to comply with an individual’s request for access to or correction of their Personal Data, you authorize Parsec Labs to satisfy such obligations as provided in Section 5.3. Parsec Labs agrees that it will forward any such individual requests that it receives to you and that it will reasonably assist you, at your expense, in the satisfaction of such requests.
5.3. Additional Obligations. Parsec Labs agrees that it will: (a) not use Personal Data except for the purposes of delivering the Service as instructed by this Agreement; (b) upon termination of this Agreement, return Personal Data to you as provided in Section 7.3; (c) implement security measures reasonably designed to safeguard Personal Data against unauthorized access, loss, destruction, damage or disclosure, which measures shall be the same as those used to protect all Managed Data unless Parsec Labs has agreed to additional measures to be taken at your expense; and (d) provide reasonable assistance to you at your expense in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws.
5.4 Application of U.S. Law; Notice. If you communicate with Parsec Labs and interact with the Service from or to a place other than the United States (“U.S.”), such communications and interactions may result in the transfer of your Personal Data or Managed Data across borders and from your country or jurisdiction to other countries or jurisdictions around the world that regulate data collection and use differently from, and more restrictively than, U.S. law. If you are located in a member country of the European Union (“E.U.”) or the Asia-Pacific Economic Cooperation (“APEC”), or any other regions of the world, please note that you will be transferring information, including personally identifiable information, to a country or jurisdiction that does not have the same privacy protection laws as your country or jurisdiction.
5.4.1 Notice to Subscribers in Member Countries of the E.U. Parsec Labs has not adopted the U.S-E.U. Safe Harbor Framework Privacy Principles. However, Parsec Labs will delete Personal Data upon request if such data is no longer necessary to delivery of the Service or upon expiration of the Subscription Term, as required by Article 12 of the E.U. Data Protection Directive (Directive 95/46/EC). To learn more about the U.S.-E.U. Safe Harbor, click here. To learn more about Directive 95/46/EC on the protection of individuals with regard to processing of personal data and on the free movement of such data, click here.
5.4.2 Notice to Subscribers in Member Countries of APEC. Parsec Labs has not implemented the APEC Privacy Framework to delivery of the Service. To learn more about this body of privacy protections that avoids barriers to information flows in the APEC region, click here.
6. LIMITATIONS ON USE OF SERVICE.
6.1. Lawful and Business Use Only; Prohibited Content. You agree to only use the Service for legitimate business purposes and not for use in situations in which System Failure could lead to death, personal injury or physical property or environmental damage. You specifically promise (by way of example and not of limitation) to (a) comply with all applicable laws, statutes, regulations and ordinances in your use of the Service and thereby refrain from engaging in any unlawful or fraudulent activity or phishing scheme or forgery or other similar falsification or manipulation of data or from perpetrating a hoax of any kind and (b) refrain from using the Service (or from allowing a third party) to copy, reproduce, capture, store, retransmit or distribute any data (i) in which you do not have rights or which you know or reasonably should know constitutes the intellectual property of a third-party, including rights to the publicity or privacy of others; (ii) you know or reasonably should know is unlawful, defamatory, threatening, obscene, pornographic, abusive, libelous, harmful to minors or otherwise objectionable, (iii) which encourages conduct that constitutes a criminal offense or otherwise incites others to commit crimes against others or the state; or (iv) which contains any virus, worm, malware or similar threat, or other harmful or deleterious computer code, files or programs (collectively, “Prohibited Content”).
You assume all risk and liability for any Prohibited Content. You agree to defend, indemnify, and hold Parsec Labs, its resellers, partners and their respective affiliates, harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable attorney fees and costs, in connection with your violation of this Section 6.1. ￼If we reasonably believe any of your Managed Data violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material ￼term of this Agreement, the EULA or the privacy policies of Parsec Labs, we will notify you of the Prohibited Content and may request that such content be removed from the Service or access to it be disabled. If you do not remove or disable access to the Prohibited Content within three (3) business days of our notice, we may remove or disable access to the Prohibited Content or suspend your Service to the ￼extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the ￼foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Service, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other ￼governmental order or request. In the event that we remove Prohibited Content without prior notice, we will provide prompt notice to you of our action unless prohibited by law.
6.2. Prohibited Actions. You agree that you will not and will not encourage or assist any third party to (a) modify, alter, tamper with or otherwise create derivative works of the Software, (b) reverse engineer, disassemble or decompile the Software used to provide or access the Service, including the Software, or attempt to discover or recreate the source code used to provide or access the Service, (c) tamper with the security of any of the systems used in the Service, tamper with other Parsec Labs customer accounts or attempt to introduce any virus, worm or similar threat, (d) attempt to access data at any Parsec Facility not belonging to or intended for you, (e) attempt to probe, scan or test the systems used in the Service or to breach any security or authentication measures except as expressly authorized by Parsec Labs, (f) willfully render any part of the systems used in the Service unusable or cause an inordinate burden on the Service, (g) access or use the Service in a way intended to improperly avoid incurring fees by exceeding the usage limits of your Service Level, (h) use the Service in any manner or for any purpose other than as expressly permitted by this Agreement, or (i) destroy, transfer or fail to maintain the Provided Equipment or fail to return the Provided Equipment after the end of the Subscription Term.
6.3. No Right to Resell or to Provide Services. Except for use of the Service to protect nodes or Managed Data of any of your affiliates, you are expressly prohibited from reselling the Services and from using the HyperQ™ Appliance and the Service to provide any type of paid or unpaid services to third parties, whether on a time-sharing, service provider or hosting basis.
6.4. Ownership. Parsec Labs and/or its licensors own all right, title and interest, including intellectual property rights, in and to the Service, the Cloud, any Provided Equipment and the Site. You acknowledge that this Agreement and your use of the Service do not transfer to you (a) any title to any Provided Equipment or (b) any title to the intellectual property in systems used in the Service or any rights therein other than the limited right to use the Service under the terms of your Subscription. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information that you provide to Parsec Labs relating to the Site or the Service become the exclusive property of Parsec Labs. Parsec Labs reserves all rights not expressly granted hereunder.
6.5. EULA. You agree that your use of the HyperQ™ Appliance, the Service and the Software is governed by the terms of the EULA in effect at the time that you activated your Subscription. The current form of Parsec Labs’ EULA can be viewed at http://www.parseclabs.com/EULA.
6.6. Provided Equipment. Parsec Labs grants you a nontransferable right to use the Provided Equipment during the Subscription Term in accordance with the terms of this Agreement.
7. TERM AND TERMINATION.
7.1. Term. The Term will be as set forth in Section 1.17 above and may be extended or terminated as provided herein. Your Subscription and Support will renew automatically at the end of the Term for a one (1) year period on the same terms and conditions but at the then-current rates for your Service Level and Support published by Parsec Labs on the Site, and the Term will be extended accordingly, unless you give notice to Parsec Labs at least thirty (30) calendar days prior to the expiration of the then-current Subscription Term of your intention not to renew. Parsec Labs agrees to give you written notice of your upcoming Subscription renewal date, including the rates applicable for the renewal term to the Service Level and Support provided under your then-current Subscription, at least sixty (60) calendar days prior to that date.
7.2. Termination for Default. Either you or Parsec Labs may terminate this Agreement immediately upon notice if the other party should default in performance of any material obligation under this Agreement or the EULA and shall have failed to cure such default within thirty (30) calendar days of receipt of written notice from the non-breaching party specifying the nature of the default, except as provided for in Section 4.4.
7.3. Effect of Termination. Upon the termination or expiration of this Agreement for any reason, your right to use the Service, including any Provided Equipment, and to receive Support, immediately terminates, and Parsec Labs will have no obligation with respect to your Managed Data. However, at your written request, Parsec Labs will make available to you, within fifteen (15) calendar days of the termination or expiration of this Agreement, access to your Managed Data which are stored in the Parsec Labs provided Cloud to be re-located to your local storage or by other mutually acceptable means. Depending on the amount of your Managed Data stored in the Cloud, fifteen (15) calendar days may not be sufficient time to transfer all of such data due to network speed limitations. In such event, Parsec Labs may require you to continue to pay for the Service while you migrate all of the Managed Data you intend to keep. Any access to or transmission of your Managed Data other than by access or transmission to your HyperQ™ Appliance will be at your sole expense. You understand and agree that if you do not make arrangements for receipt of your Managed Data as provided above, Parsec Labs may delete all of the Managed Data from its systems and will have no liability to you for such action. You agree to return promptly all Provided Equipment in accordance with instructions provided by Parsec Labs; if any Provided Equipment is not received by Parsec Labs within thirty (30) days of the expiration or termination of this Agreement or is received damaged due to your negligence in packing and shipping, you will pay Parsec Labs the then-current list price of any such Provided Equipment that was not returned or that was returned with damage. The expiration or termination of this Agreement will not affect your obligation to pay all amounts due to Parsec Labs accrued prior to termination (or, where applicable, after termination), nor entitle you to reimbursement or refund of any amounts already paid to Parsec Labs. In addition, Sections 5.3, 6.4, 7.3, 8, 11, 12, 13, 14 and 15 shall survive the expiration or termination of this Agreement.
8. DATA COLLECTION AND PRIVACY.
8.1. Data Collection by Parsec Labs. The Service is designed to communicate with Parsec Labs servers for support and operational purposes, and cookies may be used in this process. You agree that, to improve the usefulness and market acceptance of the Service, Parsec Labs may collect, use and transmit non- identifying, aggregate usage and volume statistical information from your use of the Service. Information gathered may include, but is not limited to, operating system and hardware resource identification, peripheral hardware and other information that cannot be personally identified to you. Parsec Labs reserves the right to use and publish anonymous, aggregate summary information regarding Service. The collection of anonymous information is ON by default but can be disabled by you.
8.2. Data Privacy. Subscriber will comply with all applicable laws and regulations, including those of other jurisdictions that may apply to Subscriber, concerning the protection of Personal Data. Subscriber must obtain any required employee consents addressing the interception, reading, copying or filtering of Personal Data. Neither party will use any data obtained via the Service for any unlawful purpose.
9. ORDERS AND PAYMENT.
9.1. Fees. The applicable fees for the Service (including use of any Provided Equipment) and Support are as set forth in Parsec Labs’ then-current price list or, if different, as set forth on your Quote. Fees for additional services, including, without limitation, installation, migration and configuration, may also apply. Parsec Labs reserves the right to charge you additional fees if, in its sole discretion, a failure of the Service was the result of your neglect or willful action. Except as specifically set forth in this Agreement, all fees are non-refundable.
9.2. Quotes and Orders. If you issue a purchase order in response to a Quote, you will be deemed to have accepted the terms of such Quote, including the terms of this Agreement. To the extent that the terms of a Quote specifically conflict with, modify or add to the terms of this Agreement, you will be deemed to have accepted such modified or additional terms. Parsec Labs will not be bound by any additional or different terms or conditions in any communication from you to Parsec Labs or any reseller. Parsec Labs may reject any purchase order issued by you for any reason or no reason, and you may not cancel orders once submitted unless pursuant to a default by Parsec Labs under Section 7.2.
9.3. Payment Terms. You will be invoiced for the Subscription and, if applicable, Support upon order or renewal, as applicable. All payments will be made in U.S. Dollars net thirty (30) calendar days from the date of invoice unless otherwise stated by Parsec Labs in writing. Any amounts not paid when due will accrue interest at the rate of 1 1/2% per month, or the maximum amount allowed by law, if lower. In the event that any payment is more than thirty (30) calendar days late, Parsec Labs will have the right to suspend its performance of any of its obligations under this Agreement and your access to the Service until all payments are made current. You will pay for all costs (including reasonable attorneys’ fees) incurred in connection with the collection of late payments.
9.4. Taxes. You will be liable for and will be invoiced for any and all sales, use or excise taxes which may be assessed for or related to the Service. All fees outlined in Parsec Labs’ price list are net of any such taxes.
10. SUPPORT SERVICES.
10.1. Availability of Support Services. Parsec Labs offers a certain level of support services at no additional charge as part of your Subscription. The description of the Support provided with your Subscription, including hours of operation and support policies, and of any additional levels of Support available for purchase by you, can be found on the Site.
10.2. Support Services of a Standard Subscription. Support services for the Service include access to software patches, phone support during business hours, access to the Parsec Labs knowledge base, and maintenance and repair of Provided Hardware unless damage to the same is caused by your abuse or neglect, natural disaster, fire, flooding or other event outside of Parsec Labs’ control.
11. LIMITED WARRANTY; DISCLAIMER OF WARRANTY.
11.1. Service. Parsec Labs warrants to you that, when used in strict accordance with Parsec Labs documentation, the Service (including any Provided Equipment) will operate substantially as described. Your exclusive remedy and Parsec Labs’ exclusive obligation with respect to a material breach of this limited warranty will be for Parsec Labs or its suppliers to use commercially reasonable efforts to correct any errors or provide work-arounds within a commercially reasonable time after receipt of notice so as to make the Service conform substantially to its specifications and to replace promptly any defective Provided Equipment. If, after a reasonable number of attempts to correct the errors, Parsec Labs is unable to provide the Service in compliance with this limited warranty, you may terminate the Service. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services.
11.2. Exclusion. The warranties provided in Section 11.1 do not apply to the extent that (a) the failure results from your internet connections, your equipment, or your actions as described in Section 4.2, (b) your attempt to access the Service using any software or hardware not approved by Parsec Labs or any approved software or hardware that you have not properly installed or maintained or that has been modified in a manner not approved by Parsec Labs, (c) any use of the Service not in accordance with Parsec Labs documentation or with this Agreement, (d) any use of the Service by you to cover a larger amount of Managed Data than permitted by your Service Level, or (e) affected by the acts or negligence of any party other than Parsec Labs.
11.3.DISCLAIMER. PARSEC LABS MAKES NO WARRANTIES OTHER THAN AS EXPRESSLY PROVIDED HEREIN AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON- INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, PARSEC LABS, ITS RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (C) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED.
12. LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL PARSEC LABS, ITS RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOOD OR SERVICES OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR ABILITY TO USE OR INABILITY TO USE THE SERVICE HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF PARSEC LABS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO CASE WILL PARSEC LABS’ TOTAL LIABILITY TO YOU FOR DAMAGES HEREUNDER EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE DURING THE THREE MONTHS PRIOR TO SUCH CLAIM. YOU SPECIFICALLY AGREE THAT THE ALLOCATION OF RISK BY MEANS OF THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND PARSEC LABS AND THAT THE
PRICING OF THE SERVICE TAKES THIS LIMITATION INTO ACCOUNT.
13. PARSEC LABS’ INTELLECTUAL PROPERTY RIGHTS.
13.1 Ownership. The Service, and all text, graphics, methods, processes, user interfaces, visual interfaces, photographs, logos, sounds, music, artwork, icons, know-how, frameworks, techniques, trade secrets, documentation, presentations, concepts, financial projections, customer lists, employee lists, proposed patents, data, content, technical data, software, computer code, licenses, trademarks, products, copyrighted material, marketing ideas, accounting, marketing, merchandising, sales, business or other relationships, and other confidential information contained in the Service (collectively “Parsec Labs Intellectual Property”), including but not limited to the design, structure, selection, coordination, expression, look and feel, and arrangement of such Parsec Labs Intellectual Property, is owned, controlled, or licensed by or to Parsec Labs, and is protected by trade dress, copyright, patent, and trademark laws, and various other intellectual property rights arising under state or federal laws and regulations.
13.2. Intellectual Property Rights in the Service. Notwithstanding the generality of the foregoing Section 13.1, the Service and all related intellectual property rights are the exclusive property of Parsec Labs or its licensors. All right, title and interest in and to the Service, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Service remain exclusively with Parsec Labs or its licensors. The Service is valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Service. The Service contains material that is protected by patent, copyright and trade secret law, and by international treaty provisions. Subscriber may not remove any proprietary notice of Parsec Labs or that of any third party. All rights not granted to Subscriber in this Agreement are expressly reserved to Parsec Labs. No ownership of the Service passes to Subscriber notwithstanding the Subscription. Except as otherwise expressly provided, Parsec Labs grants no express or implied right under its patents, copyrights, trademarks, or other intellectual property rights to Subscriber.
13.3. Open Source Software. The HyperQ™ Appliance and the software enabling the Service contain source code relating to certain open source software. The open source software and source code are provided to you on an "AS IS" basis and Parsec Labs, its affiliates and subsidiaries, disclaim any and all warranties and representations with respect to such software and related source code, whether express, implied, statutory or otherwise, including without limitation, any implied warranties of title, non- infringement, merchantability, satisfactory quality, accuracy or fitness for a particular purpose. Parsec Labs shall not be liable to make any corrections to the open source software or source code or to provide any support or assistance with respect to it. Parsec Labs disclaims any and all liability arising out of or in connection with the use of any such software and/or source code. This statement does not impair or enhance any warranty or disclaimer which Parsec Labs provides respecting Provided Hardware or the Software which incorporates our relevant open source software.
13.4 Prohibited Use. Except as expressly provided in this Agreement or otherwise permitted by law, no Parsec Labs Intellectual Property may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or any commercial enterprise or purpose without the express prior written consent of Parsec Labs.
14. CONFIDENTIALITY AND OWNERSHIP OF DATA.
14.1. Restrictions on Confidential Information. “Confidential Information” means the Service, the terms of any non-public agreement between the parties and any non-public information, data or know-how that has been disclosed by a party to this Agreement to the other party in writing, orally or by access to the disclosing party's premises or data and identified by the disclosing party at the time of disclosure as confidential or proprietary. All Managed Data will be assumed to be your Confidential Information. With respect to Confidential Information, the receiving party will (a) use it solely for the purposes specifically provided in this Agreement; and (b) not disclose it to any person, other than on a need-to- know basis to its own employees or to third-party consultants, affiliates, agents or subcontractors who are bound by nondisclosure agreements at least as strict as this Agreement and who are not competitors of the disclosing party. The receiving party is liable for any misuse of Confidential Information by such employees or third parties. The foregoing obligations will continue for a period of three (3) years from the date of disclosure or in perpetuity if the Confidential Information is identified to the receiving party at the time of disclosure as a trade secret under applicable law. The foregoing obligations do not apply to information that (i) was rightfully in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, free of any obligation of confidence; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (iv) is independently developed by or for the receiving party without use of the Confidential Information. This Section 14.1 will not affect any other nondisclosure agreement between the parties. In the event the treatment of Confidential Information in this Agreement conflicts with any other nondisclosure agreement between the parties, that other agreement shall control. In the event the receiving party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will promptly notify the other party to allow the disclosing party the opportunity to seek a protective order.
14.2. Ownership of Managed Data. You warrant that you have the right to possess and to transmit to the Parsec Facility all Managed Data, including all Personal Data. All rights, title, and interest in Managed Data will remain with you. This Agreement does not provide Parsec Labs with title or ownership of the Managed Data, but only a right of limited use as set forth herein. You will reimburse Parsec Labs for any expenses reasonably incurred by Parsec Labs (including reasonable attorneys’ fees) by reason of its compliance with your instructions in the event of a dispute concerning the ownership, custody or disposition of the Managed Data.
14.3. Subpoena. Parsec Labs is authorized to comply with any subpoena or similar order related to the Managed Data, provided that Parsec Labs notifies you promptly upon receipt thereof, unless such notice is prohibited by law. You agree to pay Parsec Labs’ applicable charges as set forth in its price lists for such compliance, which may include copying Managed Data onto CD, DVD or other media. Parsec Labs will, upon your request and at your expense, cooperate with your efforts to quash or limit any subpoena issued to you respecting the Managed Data.
15.1. Indemnification By Parsec Labs. If a third-party claims that the Service infringes any U.S. patent, copyright or trade secret, Parsec Labs will (as long as you are not in material default under this Agreement) indemnify, defend and hold you harmless against such claim at its sole cost and expense and pay all damages that a court finally awards, provided that you promptly notify Parsec Labs in writing of the claim, allow Parsec Labs to control the defense or any related settlement negotiations and cooperate with Parsec Labs in the defense of any such claim, provided that Parsec Labs will not consummate any settlement unless such settlement provides you with a full release from liability. If such a claim is made or appears possible, Parsec Labs may, at its option, secure for you the right to continue to use the Service, modify or replace the Service so it is non-infringing, or, if neither of the foregoing options is available, in Parsec Labs’ reasonable judgment, require you to stop using the Service for a refund or credit, at Parsec Labs’ sole option, for the unused portion of your Subscription Term. Notwithstanding the foregoing, Parsec Labs has no obligation for any claim based on the combination, operation, or use of the Service with any software, product, data, or apparatus not provided by Parsec Labs. THIS SECTION 15.1 STATES PARSEC LABS’S ENTIRE OBLIGATION TO YOU AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT.
15.2. Indemnification by You. You agree to defend any claim brought against Parsec Labs or its officers, directors or affiliates by any third party arising from or related to your: (a) violations of law or regulations in connection with the use of the Service; (b) your actual or alleged infringement of a third party's intellectual property rights (except to the extent such infringement is covered by Parsec Labs’ indemnification obligations as set forth in the EULA); (c) failure to comply with recommended security procedures, including encryption, relating to the M a n a g e d Data; or (d) any violation by you of Section 6. You agree to pay all damages and costs, including reasonable attorneys’ fees, awarded against Parsec Labs and its officers, directors or affiliates, by judgment or in settlement, in connection with such a claim as well as any costs incurred by Parsec Labs in response to your request to assist with the defense of the claim.
16. ITAR and EAR; Export Compliance. Export or diversion of the Service or the Software contrary to U.S. law is strictly prohibited. You understand that employees of Parsec Labs and/or its suppliers may have access to native data to perform the Service, and you represent a n d a f f i r m that none of this data requires protection from access by foreign persons because it contains technical information regarding defense articles or defense services within the meaning of the International Traffic in Arms Regulations (22 CFR 120) (“ITAR”) or technical data within the meaning of the Export Administration Regulations (15 CFR 730-774) (“EAR”) of the United States (collectively, “Export Controls”). If any of this data does contain any such information, you will notify Parsec Labs of the specific data that contains such information and you acknowledge that special storage and service rates will apply thereto. U.S. law prohibits export or re-export of the Service or the Software to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re- export of the Service or the Software to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the Service or the Software with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Subscriber represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the Service or the Software for any Prohibited Uses; and that it will comply with Export Controls.
17. Audit. You agree to implement reasonable controls to ensure compliance with the intended use of the Service authorized by this Agreement. You acknowledge and agree that Parsec Labs reserves the right to perform a compliance audit of your use of the Service at any time during your normal business hours, upon reasonable advanced written notice.
18. Force Majeure. The performance by you or Parsec Labs of any your or its obligations hereunder (other than the payment of money) will be excused during any period of time in which the failure to perform results from acts of God, the elements, fire, flood, component shortages, failures of power or telecommunication services beyond ParsecLabs’ control, force majeure, riot, insurrection, industrial dispute, accident, war, terrorism or the threat thereof, embargoes, legal restrictions or any other cause beyond the reasonable control of a party.
19. Governing Law. This Agreement will be governed and construed by the laws of the State of Minnesota, excluding its conflict of law rules. You expressly agree that any action at law or in equity arising under this Agreement will be filed only in the District Court of the State of Minnesota for the County of Hennepin or in the United States District Court for the District of Minnesota, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. ThepartiesherebyexpresslydisclaimapplicationoftheU.N.ConventiononContractsforthe International Sale of Goods.
20. Entire Agreement. This Agreement is the entire agreement between you and Parsec Labs regarding the subject matter herein and supersedes any other communications with respect to the Service, and there are no promises, terms, conditions or obligations, oral or written, express or implied, between you and Parsec Labs relating to the subject matter hereof other than those contained herein. Parsec Labs reserves the right to modify these terms of service set forth in this Agreement at any time, and each such modification will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of the Service following any such modification constitutes your agreement to be bound by the modified terms of service. To stay informed of any changes, please review the most current version of these terms of service posted on the Site. If you do not agree to be bound by these terms of service, you must stop using the Service immediately.
21. Severability; Waiver. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect. Failure by a party to insist upon performance by the other party of any of its obligations under this Agreement will not constitute a waiver of the right to enforce its rights with respect to the same or any other provision.
22. Assignment. Except pursuant to a merger, acquisition or business combination, no party may assign this Agreement, by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably conditioned or withheld. Any prohibited assignment or sublicense or transfer will be null and void. This Agreement will be binding upon the successors and assigns of both parties.
23. Attorneys’ Fees. In the event legal action is required to enforce or interpret any terms and conditions of this Agreement, the prevailing party in such legal action will recover all reasonable costs and expenses, including attorneys’ fees, incurred in connection with such action.
24. Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the Parties and their respective successors or permitted assigns, any rights, remedies, obligations, or liabilities whatsoever.
25. Relationship of The Parties. The performance by Parsec Labs of its duties and obligations under this Agreement shall be that of an independent contractor, and nothing herein shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties.
26. Section Headings. Section headings are for convenience of reference only and shall not be taken into account in the construction or interpretation of this Agreement.
27. Inconsistent Terms. Unless (and to the extent) expressly agreed to in writing, the provisions of this Agreement shall apply to and govern the relationship of the parties and their affiliates. In particular, no term contained in any purchase order, confirmation, acknowledgement, invoice, or other document or communication that is expressly or impliedly inconsistent with the provisions of this Agreement shall be effective unless such term is expressly and specifically acknowledged and agreed to in writing by the party against whom such term is sought to be enforced.
28. Intellectual Property. The term “intellectual property” as used herein shall be interpreted in the broadest sense of the concept, including patents, copyrights, trade secrets, trademarks and all other proprietary rights arising under either state or federal laws.