PRIMARY SERVICES AGREEMENT between Lightcrest (“we” or “Lightcrest”) and the customer who signs our Service Order (“you” or “Customer”).
1. THE NATURE OF THIS AGREEMENT
You will be asked to sign a Service Order that describes the services and products you have selected and the associated costs. The Service Order will incorporate the Primary Services Agreement and Service Level Agreement. The Service Order may also incorporate an addendum to the Primary Services Agreement. When we use the term “Agreement” in any of these documents, we are referring to all of the documents as a whole. The Agreement is effective as of the time that you sign the Service Order prepared by Lightcrest.
2. SUBSET OF TERMS
Some terms used in the Agreement are defined here.
“Service” or “Services” means the Managed Infrastructure Service and any Additional Services we may collectively provide.
“Additional Service” means any service we provide to you other than the Managed Infrastructure Service.
“Service Level Agreement” means the Service Level Agreement included by reference in your Service Order.
“Service Start Date” means the date on which the sevice order was executed between Lightcrest and Customer, or 30 days before the date of your second invoice, whichever is later.
“Managed Infrastructure Service” means the managed infrastructure services described in a Service Order and Service Level Agreement, plus Support.
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States pacific time, excluding federal public holidays in the United States.
“Support” means (1) management of the Managed Infrastructure Service by one or more account managers, network engineers, systems administrators, and software engineers, (2) availability of an on-call staff member 24 hours a day, seven days a week, 365 days a year; and (3) use of any custom reporting tools that Lightcrest provides.
“Private Security Information” or PSI means: (1) any information that identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, mother’s maiden name, biometric or other personally identifiable information.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (1) for you, all information transmitted to or from, or stored on, your Lightcrest servers or other devices, (2) for Lightcrest, terms of service and unpublished prices, audit and security reports, systems architectures, and other proprietary technology, and (3) for both of us, information that is explicitly deemed confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
3. LIGHTCREST’S OBLIGATIONS
Lightcrest will provide the Managed Infrastructure Service to the standards stated in the Service Level Agreement for the term of the Agreement. Lightcrest will also perform those Additional Services that we agree with you in writing to execute.
4. PROMISES WE DO NOT MAKE
We do not promise that the Services will be completely secure, uninterrupted, or free of errors due to the nature and risks inherent to the Internet. The Customer acknowledges that exposing data on the Internet can result in compromise of Confidential Information and property, regardless of security measures taken.
5. YOUR OBLIGATIONS
You must pay when due the fees for the Services stated in the Service Order(s) or other agreement between us. You must provide Lightcrest with accurate information to help Lightcrest determine due taxes with respect to the provision of Services. You must encrypt any PSI transmitted to or from Lightcrest’s infrastructure, including PSI stored on servers and storage appliances. You must comply with the laws applicable to your use of the Services. You must work with Lightcrest to investigate security problems, suspect breach of the Agreement, or Service outages.
5.1 We do not promise to back up your data unless we have credited such service or you have purchased such a service. We do not promise to keep the data archive for longer than the agreed retention period.
5.2 You are responsible for the suitability of the service chosen.
6. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES
You the Customer are responsible for the use of Services by any of your employees or persons to whom you have granted access to the Services, and any person who has been granted access to your data or the Services as a result of your failure to use security precautions, even if such use was not authorized by you. We are not responsible to you for unauthorized use of the Services or unauthorized access to your data unless the aforementioned is a direct result of Lightcrest’s failure to meet the security promises described herein.
7. TERM
The initial term begins on the Service Start Date and continues for the time period declared in the Service Order. When the initial term expires, Lightcrest may offer you the option to renew the Agreement for an additional term. If you do not renew the Agreement, it will automatically renew for successive extended terms of three (3) months each unless and until one of us provides the other with notice of non-renewal at least ninety (90) days in advance of the expiration of the initial term or current extended term.
8. FEES
8.1 Your first invoice will include the initial setup surcharge and a prorated part of the monthly recurring fee from the Service Start Date to the last day of the calendar month. Lightcrest may require you to pay this initial invoice or pay several months in advance before beginning the Managed Infrastructure Service. Monthly recurring fees will be billed monthly in advance on or around the first day of each calendar month, following the Service Start Date. Surcharges for any Additional Services will be billed in the amounts and at such times as we agreed with you in writing. If you are given a “free migration” in which remittance of your second invoice is granted a grace period, this grace period will be limited to 60 days after we have received the payment of your first invoice.
8.2 Fees are due on receipt of invoices. Lightcrest may suspend all Services if payment of any invoiced amount is overdue, and you do not pay the overdue amount within seven Business Days of our written notice to your billing contact. You agree that if your Service is reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. Lightcrest may charge interest on overdue amounts at 1.5% per month. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law. If any amount is overdue by more than thirty days and Lightcrest brings a legal action to collect, you must also pay Lightcrest’s reasonable costs of collection, including court costs and attorneys fees.
8.3 We may increase the fees for the Managed Infrastructure Service on thirty days advanced written notice following the expiration date of the initial term.
8.4 If Lightcrest is required by law to pay taxes on the provision of the Service, you must pay Lightcrest the amount of the tax that is due or provide Lightcrest with satisfactory evidence of your exemption from the tax. Fees must be paid in U.S. Dollars.
8.5 Invoices that are not disputed within 30 days of invoice date are conclusively deemed accurate.
8.6 Once an invoice becomes overdue, Lightcrest will put your account on support hold. This means new support requests will not be acted upon until Lightcrest receives full remittance of all overdue invoices. During support hold, we will be responsible only for keeping your servers powered on and available on our network.
8.7 If you have arranged for payment by credit card or ACH bank transfer, Lightcrest may charge your card or account on or after the invoice date or any day before or after the due date.
9. SUSPENSION OF SERVICES
You agree that we may suspend Services without liability if: (1) we believe your server(s) are compromised by a malicious third party, (2) required by law, (3) we believe that the Services are being used in violation of the Agreement, (4) any invoice Lightcrest submits to you for payment is overdue (in accordance with section 8.2).
10. TERMINATION FOR BREACH
10.1 You may terminate the Agreement for breach if: (1) we fail to meet any obligations stated in the Agreement and do not remedy the failure within 30 days
10.2 We may terminate the Agreement for breach if: (1) Lightcrest finds that the information you provided to establish the Services is materially incomplete or inaccurate, (2) your payment of any invoiced amount is overdue and you do not pay the overdue amount within seven Business Days of our written notice, (3) the customer-representing individual signing the Agreement did not have legal right or authority to enter into the Agreement, or (4) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty days of our notice to you describing the failure.
11. TERMINATION FOR CONVENIENCE
Upon providing thirty days advance written notice, either party may terminate the Agreement for convenience.
12. EARLY TERMINATION FEE
If we terminate the Agreement for your breach or you terminate the Agreement for convenience, you must pay an early termination fee equal to the sum of the monthly recurring fees for the remaining portion of the current term or current extended term.
13. CONFIDENTIAL INFORMATION
Each of us agrees not to use the other’s Confidential Information except in connection with the use or adequate execution of the Services, or as may be required by law.
14. LIMITATION ON DAMAGES
We are not liable to you for failing to provide the Managed Infrastructure Service unless such failure results from a breach of the Service Level Agreement, or results from our gross negligence or willful misconduct.
In the event of a breach of the Service Level Agreement, Lightcrest’s liability on all damages will be strictly limited to the forfeiture of the remaining monetary amount of the Service Agreement in effect, or one month of service fees if no service agreement is in effect. Furthermore, pursuant to Section 4 and Section 17, Lightcrest does not guarantee nor indemnify against loss of Customer data or loss of Customer revenue resulting from breach of Service Level Agreement or any other adverse event affecting Services or Additional Services. Under no theory of law (including breach of contract, tort, strict liability, infringement) shall Lightcrest’s monetary liability exceed the aforementioned limitation.
Under no circumstances nor any theory of law shall either party be responsible to the other for punitive damages.
15. NOTICES
All non-legal matters concerning your Services should be communicated to your Lightcrest team through e-mail or the Lightcrest service portal. If you want to give Lightcrest notice regarding termination of the Agreement, you should send it by electronic mail and first class United States mail to:
legal@lightcrest.com
Legal Affairs
Lightcrest
1112 Montana Ave. #705
Santa Monica, CA 90403
The Business Day on which the notice is received by Lightcrest serves as the first day of the notice period. Lightcrest’s communications regarding the Services and legal matters will be sent to the personnel you specify as your contacts on your account.
16. PROPERTY OWNERSHIP
If the Agreement is terminated, you must immediately release any Internet Protocol subnets assigned to you in connection with the network segment allocated to you for your Service. You do not acquire any ownership interest in the infrastructure we provide to you, all servers, systems, and network infrastructure is the property of Lightcrest.
17. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an occurance beyond our control, such as a natural disaster, failure on a major Internet backbone, epidemic, riots, war, or other unforeseen events of grand catastrophic proportions.
18. GOVERNING LAW, LAWSUITS
You agree that you will not bring or participate in any class action lawsuit against Lightcrest or any of its affiliates or employees. The Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable.
19. MULTIPLE SERVICE ORDERS
If you sign multiple Service Orders for an existing deployment, i.e. to increase network capacity or augment a systems design, then the last signed Service Order will take control of the aggregate deployment. Service Orders may be amended by both parties via a written agreement.
20. NON-SOLICITATION
Both parties agree that employees and personnel of each party represents a significant investment in recruitment, training, and operations. Therefore, both parties agree that for the term of the Agreement and for a period of one (1) year after its termination for any cause (“Non-Solicitation Period”), neither party will directly or indirectly without specific written approval, recruit, hire, engage, or otherwise discuss employment with or utilize the services of any person who shall have been an employee of the other party at any time during the Non-Solicitation Period. Nor shall any party induce any person who shall have been an employee, agent, consultant, or customer of the other party during the Non-Solicitation Period to terminate his or her relationship with the other party.
21. LIGHTCREST LIMITED WARRANTY
All Kahu Bricks and Lightcrest Products will be provided under a limited warranty as specified by the Lightcrest Limited Warranty linked at https://www.lightcrest.com/warranty.
22. KAHU COMPUTE FABRIC PERPETUAL LICENSE
Kahu Perpetual Licenses are mapped to the current stable release of Kahu at the time of contract execution. For example, if the stable release at the time of contract execution is v1.0, then the customer is entitled to patches and upgrades for that major release train.
23. COMPLIANCE REQUIREMENTS
Customer acknowledges that they are responsible for determining and disclosing all regulatory compliance requirements in writing prior to deployment.
The Agreement is the exclusive and complete agreement between you and Lightcrest regarding its subject matter and supersedes and replaces any previous agreement.
© 2016 Lightcrest
We can be reached by sending e-mail to contact@lightcrest.com.
