PLEASE READ CAREFULLY: THIS MASTER SERVICES AGREEMENT
is between SoftLayer Technologies, Inc., an IBM Company (“SoftLayer”)
and the individual or entity (“Customer”) for certain computer infrastructure
and related services provided by SoftLayer as ordered or accepted pursuant to
the Terms of Service (“Services”). The Customer’s
use of and access to Services is governed by the Master Services Agreement
which includes the Terms of Services, Service Level Agreement, Privacy
Agreement, IP Address Policy, SoftLayer Acceptable Use Policy and relevant
appendices (which may include without limitation the international-related
addenda that is attached below) (“MSA”). BY CLICKING OR CHECKING THE BOX PRESENTED
WITH THE MSA OR INSTALLING OR USING THE SERVICES, THE CUSTOMER AGREES THAT (1)
CUSTOMER HAS ACCEPTED THE MSA IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE
MSA (AS AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 19.1 OF THE TERMS OF
SERVICE ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE INDIVIDUAL REPRESENTS
AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE MSA AND IF THE
CUSTOMER IS AN ENTITY, THEN THE INDIVIDUAL WHO AGREES TO THE MSA REPRESENTS AND
WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND (4) THIS MSA
CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN SOFTLAYER AND
CUSTOMER. IF THE CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS MSA AND
DOES NOT AGREE TO BE BOUND BY THIS MSA, PLEASE DO NOT CLICK OR CHECK THE BOX
PRESENTED WITH THE MSA OR INSTALL OR USE THE SERVICES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SOFTLAYER AND
CUSTOMER ACKNOWLEDGE AND AGREE THAT THEY ARE ALREADY BOUND TO THE TERMS AND
CONDITIONS OF THIS MSA; MANUALLY EXECUTING THIS MSA IS FOR RECORD KEEPING
PURPOSES ONLY; AND MANUALLY EXECUTING THIS MSA DOES NOT AMEND OR SUPERSEDE ANY
OF THE EXISTING TERMS AND CONDITIONS OF THIS MSA:
Technologies, Inc., an IBM Company
Terms of Service (“TOS”)
“Account Information” means billing information, contact
information, payment information and such other information defined as “Account
Information” in the Customer Portal.
“Affiliate" means any legal entity that a party
controls, that controls a party, or that is under common control with a party.
For purposes of this definition, “control” shall mean beneficial ownership of
the securities entitled to vote in the election of directors (or, in the case
of an entity that is not a corporation, of the election of the corresponding
management authority) in the entity of (i) more than fifty percent (50%) of the
securities or (ii) such lesser percentage of securities as is the maximum
ownership permitted in the country where the entity exists.
“Anniversary Billing Date" means the date of the
month of the Effective Date except as provided in this definition. For example,
if the Effective Date is May 20, 2012, then the Anniversary Billing Date is the
twentieth of the calendar month. If the Anniversary Billing Date is a date in a
calendar month which does not exist in each calendar month, then the
Anniversary Billing Date shall be the last date of such month (i.e. if the
Anniversary Billing Date is the 30th, then in February, the Anniversary Billing
Date shall be either February 28 or 29, depending on the year).
“AUP” means the Acceptable Use Policy which is located at
www.softlayer.com/about/legal (or such other location as SoftLayer may
designate from time to time).
“Customer” means the individual or entity who agrees to
the terms of the MSA by clicking or checking the box presented with the MSA,
installing and/or using the Services.
"Customer Content" means all data, software and
information, including, without limitation, data text, software, scripts,
video, sound, music, graphics and images that are created, uploaded or
transferred in connection with the Services by Customer or its Affiliates.
“Customer End User” means a Third Party or its Affiliate
which is an end user of a Customer Offering.
“Customer Offering” means services created by Customer
based in whole or in part on the Services which are used by authorized Third
“Customer Portal” means the portal at
https://manage.softlayer.com (or such other location as SoftLayer may designate
from time to time) or the SoftLayer Application Programming Interface.
“Effective Date” means the date on which the Customer
accepts the MSA by clicking or checking the box presented with the MSA,
installing and/or using the Services.
“Feedback” means any and all suggestions, comments,
improvements, or other feedback about the Services that Customer or any
Affiliate provides to SoftLayer either directly or indirectly via a
SoftLayer-controlled web site.
“Flow-Through Provisions” mean the terms of agreements for
services provided by Third Parties which are included in the MSA as required by
providers of Third Party Services. The Flow-Through Provisions apply only to
the relevant services provided by Third Parties. Such services provided by
Third Parties are part of the Services and are subject to the terms of the MSA
as well as the Flow-Through Provisions.
“Hourly Services” means the Services that SoftLayer offers
on an hourly basis.
“Initial Term” means the period commencing on the
Effective Date until the next Anniversary Billing Date, unless terminated as provided
in Section 16.
“IP Address Policy” means the policy governing the use and
provision of any IP Addresses which is located at www.softlayer.com/about/legal
(or such other location as SoftLayer may designate from time to time).
“MSA” has the meaning set forth in the recitals.
"Order" means an order for a Service which may
include a new order for a Service or an upgrade or a downgrade of a Service.
The Order must be placed through the Customer Portal or such other method
designated by SoftLayer from time to time. Orders do not apply to Third Party
“PII” means information that can be used to identify,
contact, or locate a single person or that can be used with other sources to
uniquely identify a single individual.
“Privacy Agreement” means the terms governing the use of
PII which is located at www.softlayer.com/about/legal (or such other location
as SoftLayer may designate from time to time).
“Private Network” means the term as described in the AUP.
“Public Network” means the term as described in the AUP.
“Renewal Term” means the period commencing after the last
day of the Initial Term or the Renewal Term and extending until the next
Anniversary Billing Date unless terminated as provided in Section 16.
“Services” has the meaning set forth in the recitals.
"Service Level Agreement" means the Service
Level Agreement which is located at www.softlayer.com/about/legal (or such
other location as SoftLayer may designate from time to time).
“Site” means www.softlayer.com (or such other location as
SoftLayer may designate from time to time).
“SLA Credits” mean the credits for applicable qualifying
service downtime as described in the Service Level Agreement.
“SoftLayer” has the meaning set forth in the recitals.
“Term” means the term as set forth in Section 16.
“Third Party” means an individual or an entity which is
not a Customer, SoftLayer, or an Affiliate of SoftLayer.
“Third Party Services” mean services which are provided by
Third Parties directly to Customer. The definition of Services does not include
Third Party Services.
“TOS” means the terms of service for the Services.
“TPS Agreements” mean agreements for Third Party Services
which are directly between the Customer and the provider of the Third Party
Services. These agreements are separate and independent from the MSA and
SoftLayer is not a party to these agreements.
2. SOFTLAYER’S OBLIGATIONS.
2.1 Provision of Services. Contingent on SoftLayer’s
acceptance of an Order and subject to the terms of the MSA, SoftLayer agrees to
use reasonable efforts to provide the Services subject to the terms of Service
Level Agreements. SoftLayer retains the right to reject the request for
Services by any individual or entity in its sole discretion. SoftLayer may
change, discontinue, add, modify, re-price or remove features or functionality
from the Services upon notice to Customer provided through the Customer Portal.
It is the Customer’s responsibility to review the Customer Portal for such
notices on a frequent basis. If Customer continues to use the Services
following any such modification, such use will be deemed acceptance of such
modification by Customer. The Third Party Services are provided by the relevant
Third Parties and SoftLayer is not responsible for the provision of Third Party
2.2 Age. Customer must be at least 18 years of age or
otherwise have the legal capacity to order Services. If Customer is ordering
Services on behalf of an employer, company, or other legal entity, Customer
represents and warrants that it has the legal right and authority to order
Services and be bound to this MSA.
3.1 Collection of PII. The collection and use of PII is
governed by the Privacy Agreement.
4. USE OF AND ACCESS TO THE SERVICES.
4.1 Ordering and Modification of Services. Customer
may order Services and all upgrades to such Services through the Customer
Portal or as otherwise designated by SoftLayer. SoftLayer may accept such
Orders in its sole discretion and shall give notice to Customer of acceptance
of such Order through the Customer Portal. For downgrades or cancellation of
Services, SoftLayer requires a written cancellation notice by cancellation
ticket in accordance with the procedures in the Customer Portal and through the
Customer Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-6) on the
Anniversary Billing Date for downgrades or discontinuance of Services. The
failure to provide the required 24 hours written notice will result in the
downgrade or discontinuance of Services being effective on the following Anniversary
Billing Date and Customer will be charged for the Services during the relevant
Renewal Term. Any Services cancelled prior to such 24 hour period will
remain accessible to Customer until the automated process reclaims the server
on the Anniversary Billing Date.
4.2 Rights to Use Services. Subject to the terms
and conditions of this MSA (including the Term), SoftLayer grants Customer a
non-exclusive, non-transferable, non-sublicenseable (except to the extent
required to exercise rights under Section 4.2(b)), revocable right in the
Services solely to: (a) use and access the Services for internal purposes;
and (b) use the Services to create, offer and provide the Customer
4.3 Customer Obligations. Customer agrees to do
each of the following: (i) comply with all applicable laws, rules and
regulations, including, without limitation, the Foreign Corrupt Practices Act
international anti-corruption laws and the Digital Millennium Copyright Act and
intellectual property laws; (ii) pay the fees for the Services when due; (iii)
use reasonable security precautions for providing access to the Services by its
employees or other individuals to whom it provides access; (iv) cooperate with
SoftLayer’s or its Affiliate’s investigation of outages, security problems, and
any suspected breach of the MSA; (v) comply with all license terms or terms of
use for any software, content, service or website (including Customer Content)
which Customer uses or accesses when using the Services; (vi) give SoftLayer
true, accurate, current, and complete Account Information; (vii) keep
Customer’s Account Information up to date; (viii) be responsible for the use of
the Services by Customer and Customer End Users and any other person to whom
Customer has given access to the Services or Customer Offering; (ix) comply
with the TPS Agreements; (ix) use commercially reasonable efforts to prevent
unauthorized access to or use of the Services and immediately notify SoftLayer
of any known or suspected unauthorized use of Customer’s account, the Services
or any other breach of security; and (xi) where the Customer provides Customer
Offering as permitted under this Agreement, Customer must enter into an
agreement with Customer’s End User which shall include the relevant terms of
this Agreement and release SoftLayer and its Affiliates from any and all
liability for damages or losses Customer’s End Users may incur as a result of
using the Customer Offering. Customer may not use the Services in any situation
where failure or fault of the Services could lead to death or serious bodily
injury of any person, or to physical or environmental damage. For example,
Customer may not use, or permit any other person to use, the Services in
connection with aircraft or other modes of human mass transportation, nuclear
or chemical facilities, or Class III medical devices under the Federal Food,
Drug and Cosmetic Act. Customer may not resell any of the Services alone to any
Third Party without first entering into a reseller agreement with SoftLayer.
4.4 Special Terms for Third Party Services. To the
extent Customer orders Third Party Services under TPS Agreements, SoftLayer is
not responsible for such Third Party Services and the provider of the Third
Party Service is solely responsible for providing such Third Party Services.
However, the Customer also agrees that the following terms of the TOS apply to
such Third Party Services: Sections 8, 9, 10, 11, 15 and 16.
5.1 Fees. All fees for the provision of Services (except
as provided below for Additional Service Fees, Hourly Service Fees and One Time
Fees) are due in advance of the first day of the relevant term. For example,
the fees for such Services during the Initial Term shall be due on the
Effective Date or before the provision of Services. The fees for the Services
for Renewal Term would be due on or prior to the Anniversary Billing Date for
such Renewal Term. The amount due may be adjusted by addition of Services,
upgrade of Services, discontinuance of Services or downgrade of Services and
through the use of SLA Credits. The fees for additional or upgraded Services
for which the Order is accepted on the Anniversary Billing Date will be due on
the Anniversary Billing Date. The fees for additional or upgraded Services for
which the Order is accepted after an Anniversary Billing Date will be pro-rated
on a calendar day basis to the next Anniversary Billing Date and billed as a
one-time pro-rata charge on the next Anniversary Billing Date. Such fees will
be due for the following Renewal Terms until cancelled as provided in
5.2 Additional Service Fees/Hourly Service Fees/One Time
Fees. For fees for additional services such as Content Delivery Network
(CDN) overages, bandwidth use overages, backup overages and VMware use
(including archive storage), payment shall be due on the next Anniversary
Billing Date. For Orders for Hourly Services, Customer shall specify the period
of time for which the Hourly Services are requested in minimum increments of
one hour and payment shall be due on the next Anniversary Billing Date. One
time fees, such as setup fees, bandwidth, storage, administrative fees and late
fees, are due and payable when invoiced, and/or as agreed by SoftLayer through
the Customer Portal.
5.3 Payment Methods. The payment shall be made by
the credit card maintained on file with SoftLayer, automatic file transfer or
such other method as approved by SoftLayer. For methods such as credit card,
the payment of fees shall be automatic on the due date.
5.4 Taxes. All prices and fees specified in or
referred to in this MSA are stated exclusive of any tax, including withholding
tax, sales, use, value added, levies, import and custom duties, excise or other
similar or equivalent taxes imposed on the supply of Services. Any sales, use,
levies, excise, withholding taxes or similar charges, direct or indirect,
applicable or to become applicable, which are levied as a result of the supply
of the Services shall be paid by the Customer. Neither party shall be liable for
the other party’s taxes based on income. If withholding tax applies to any
payments for Services made under this MSA, the Customer may deduct such taxes
and shall pay such taxes to the appropriate tax authority; provided that
Customer shall provide SoftLayer with an official receipt for any such taxes
withheld and must notify SoftLayer prior to payment that withholding tax is
required to be paid and Customer shall pay to SoftLayer any additional amount
to ensure that SoftLayer receives the full amount of the invoice. If SoftLayer
has the legal obligation to pay or collect taxes for which Customer is
responsible under this paragraph, the appropriate amount shall be charged to
and paid by Customer in addition to the amount of the invoice, unless Customer
provides SoftLayer with a valid tax exemption certificate authorized by the
appropriate taxing authority. The parties undertake to cooperate, where
possible, to minimize the amount of withholding tax due by making advance
clearance applications under the relevant double taxation treaties (where
applicable) to the relevant tax authority to reduce the rate of withholding tax
or exempt entirely this amount if applicable. In any event, the Customer
undertakes to account for any tax withheld to the tax authorities on a timely
5.5 SLA Credits. SLA Credits, if issued to
Customer’s account, shall be used only to offset future charges for certain
Services as provided in the Service Level Agreement. SLA Credits may not be
sold, converted to cash or transferred to Third Parties or Affiliates. SLA
Credits shall expire on the termination or expiration of the MSA.
5.6 Additional Fees. The Customer’s failure to pay
any fees on the due date shall result in incurring a late fee of $20. If
SoftLayer has suspended the Customer’s access to the Services over the Public
Network as provided in Section 15, the Customer shall incur a $50 reconnection
fee. Such fees shall be due upon receipt, and SoftLayer will not reconnect any
Services to the Customer until full payment of such fees.
5.7 Refunds & Disputes. All fees paid for
Services to SoftLayer are non-refundable. If the Customer believes that the
bills are in error, the Customer’s sole and exclusive remedy is to seek SLA
credits through the Customer Portal by opening an accounting ticket to give
notice to SoftLayer within 30 days of the receipt of the disputed bill. Any
invoice not disputed by Customer in accordance with Section 5.7 within 30 days
of receipt of the invoice shall be conclusively accepted by Customer as correct.
Customer shall not chargeback any credit card payments to SoftLayer and any
such chargeback will result in an additional payment to SoftLayer of up to $500
which is a reasonable estimate of SoftLayer’s additional administrative costs.
Customer is responsible for any fees and costs (including, but not limited to,
reasonable attorneys’ fees, court costs and collection agency fees) incurred by
SoftLayer in enforcing collection of fees.
6. OWNERSHIP OF SITE.
Customer hereby acknowledges and agrees that SoftLayer (or its
licensors) own all legal right, title and interest in and to the Site and the
Services provided by SoftLayer, including, without limitation, any intellectual
property or other proprietary rights which subsist in the Site and Services
(whether such rights are registered or unregistered, and wherever in the world
those rights may exist). As between Customer and SoftLayer, all materials on
the Site, including, but not limited to, graphics, user and visual interfaces,
images, software, applications, and text, as well as the design, structure,
selection, coordination, expression, "look and feel", and arrangement
of the Site and its content (except for any Customer Content), and the domain
names, trademarks, service marks, proprietary logos and other distinctive brand
features found on the Site, are all owned by SoftLayer or its licensors.
SoftLayer agrees to maintain reasonable and appropriate measures
related to physical security to protect Customer Content. Other than
responsibility for physical security, Customer shall be solely responsible for
data maintenance, integrity, retention, security, and backup of the Customer
Content. If Customer transfers or is otherwise involved in the transfer of any
Customer Content (whether in connection with its business or otherwise) over
the Public Network or Private Networks, then Customer is solely responsible for
compliance with any applicable laws, rules and regulations in any and all
applicable regions or countries regarding the security, privacy, legality
and/or safe handling of such Customer Content.
8. INDEMNIFICATION BY CUSTOMER.
Customer hereby agrees to indemnify, defend and hold harmless
SoftLayer and its Affiliates, licensors and providers of Third Party Services,
and their respective directors, officers, employees, contractors, agents,
successors, and assigns, (collectively, the “SoftLayer Parties”) (SoftLayer and
each of the SoftLayer Parties an “Indemnified Party”), from and against any and
all liability (including, without limitation, attorneys’ fees and costs)
incurred by the Indemnified Parties in connection with any actual or alleged
claim (“Claim”) arising out of: (a) Customer’s use of the Services or Third
Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any
breach or alleged breach by Customer including any person given access or
Customer End Users of a Third Party’s rights, including, without limitation,
any actual or alleged infringement or misappropriation of a Third Party's
copyright, trade secret, patent, trademark, privacy, publication or other
proprietary right; (d) any damage caused by or alleged to have been caused by
Customer or Customer End Users to the Site or Services; or (e) any actual or
alleged violation or non-compliance by Customer or Customer End Users with any
applicable law, court order, rule or regulation in any jurisdiction. The
counsel which Customer selects for the defense or settlement of a Claim must be
approved in writing in advance by SoftLayer prior to such counsel being engaged
to represent the Indemnified Parties. Customer shall not in any event consent
to any judgment, settlement, attachment, or lien, or any other act adverse to
the interests of SoftLayer or any SoftLayer Parties without the prior written
consent of SoftLayer and/or applicable SoftLayer Parties. Customer and
Customer’s counsel will cooperate as fully as reasonably required, and provide
such information as reasonably requested, by the SoftLayer or the SoftLayer
Parties in the defense or settlement of any such matter.
9. DISCLAIMER OF WARRANTIES.
EXCEPT AS REQUIRED BY LAW CUSTOMER’S USE OF THE SITE AND SERVICES
IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE
FURNISHED BY SOFTLAYER “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR
OTHERWISE, OF ANY KIND. SOFTLAYER; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR
A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET
CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED,
SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE
RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY,
TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY
FOR ITS AND CUSTOMER END USERS’ USE OF THE SERVICES.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES.
EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL SOFTLAYER BE LIABLE TO
CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE,
OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO,
COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR
RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF
GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CONTENT, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY
OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF SOFTLAYER HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY.
EXCEPT AS REQUIRED BY LAW SOFTLAYER WILL NOT BE LIABLE TO
CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR
CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL
THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING,
SOFTLAYER IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES
UNDER OR IN CONNECTION WITH THE SERVICES, SOFTLAYER'S TOTAL CUMULATIVE
LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID
BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF
THE EVENT(S) GIVING RISE TO SOFTLAYER’S LIABILITY.
12. ALLOCATION OF LIABILITY.
THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES,
DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND
IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN
ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SOFTLAYER
WOULD NOT HAVE ENTERED INTO THIS MSA. SOFTLAYER’S PRICING REFLECTS THIS
ALLOCATION OF RISK AND THESE LIMITATIONS.
13. DISPUTE RESOLUTION.
Notwithstanding the provisions for non-payment by Customer, each
party will allow the other reasonable opportunity to comply before it claims
that the other has not met its obligations under this MSA. The parties
will attempt in good faith to resolve all disputes, disagreements, or claims
between the parties relating to this MSA. Unless otherwise required by
applicable law without the possibility of contractual waiver or limitation, i)
neither party will bring legal action, regardless of form, arising out of or
related to this MSA or any transaction under it more than two years after the
cause of action arose; and ii) after such time limit, any legal action arising
out of this Agreement or any transaction under it and all respective rights
related to any such action lapse. Notwithstanding the provisions of this
Section 13, Customer acknowledges that Customer’s breach of Sections 4.2, 4.3
or violation of any terms and conditions of the AUP would cause irreparable
injury to SoftLayer and agrees that in the event of any such breach, SoftLayer
shall be entitled to seek temporary and preliminary injunctive relief without
the necessity of proving actual damages or posting any bond or other security.
Customer hereby grants to SoftLayer a non-exclusive, worldwide,
royalty-free, fully paid-up license during the Term to use Customer’s
trademarks, marks, logos or trade names in connection with SoftLayer’s
provision of Services (including support of Services) to Customer and to be
listed as a customer of the Services by SoftLayer or its designees. The license
granted in this Section 14 will include the right of SoftLayer to
sublicense its Affiliates and any Third Parties providing all or part of the
Services on behalf of SoftLayer to achieve the foregoing.
15.1 Suspension. SoftLayer may suspend provision of
Services to Customer without liability if: (i) SoftLayer reasonably
believes that the Services are being used (or have been or will be used) by
Customer in violation of the MSA or any applicable law, court order, rule or
regulation in any jurisdiction; (ii) Customer does not cooperate with
SoftLayer’s investigation of any suspected violation of the MSA or any applicable
law, court order, rule or regulation in any jurisdiction; (iii) SoftLayer
reasonably believes that Services provided to Customer have been accessed or
manipulated by a Third Party without Customer’s consent or in violation of the
MSA; (iv) SoftLayer reasonably believes that suspension of the Services is
necessary to protect SoftLayer’s network or other SoftLayer customers;
(v) a payment for the Services is overdue by more than 5 days including
the Anniversary Billing Date (and in addition, SoftLayer may, in SoftLayer’s
sole discretion, continue to make the Services available through the Public
Network and may suspend such access to the Private Network if the fees are not
paid within 7 days of the due date); (vi) the continued use of the
Services by the Customer may adversely impact the Services or the systems or
content of any other SoftLayer customer, (vii) SoftLayer reasonably
believes that the use of the Services by Customer may subject SoftLayer, its
Affiliates, or any Third Party to liability; or (viii) suspension is
required by law, statute, regulation, rule or court order. SoftLayer will give
Customer reasonable advance notice of a suspension under this paragraph and a
chance to cure the grounds on which the suspension are based, unless SoftLayer
determines, in SoftLayer’s reasonable commercial judgment, that a suspension on
shorter or contemporaneous notice is necessary to protect SoftLayer or its
other customers from operational, security, or other risk or the suspension is
ordered by a court or other judicial body. A violation of the Flow-Through
Provision shall be treated the same as a violation of the MSA for this
provision. If SoftLayer suspends the Customer’s right to access or use any
portion or all of the Service:
Customer remains responsible for all fees and charges Customer has
incurred through the date of suspension;
Customer remains responsible for any applicable fees and charges for any
Services to which Customer has continued to have access, as well as applicable data
storage fees and charges, and fees and charges for in-process tasks completed
after the date of suspension;
Customer will not be entitled to any SLA Credits under the Service Level
Agreement for any period of suspension; and
at SoftLayer’s sole discretion, SoftLayer may terminate Customer’s
access to Customer Content stored in the Services during a suspension, and
SoftLayer shall not be liable to Customer for any damages or losses Customer
may incur as a result of such suspension.
16.1 Term. Except in the case of Hourly Services
which are provided based on the number of hours in the Order or as otherwise
agreed to by the parties in writing, the term shall commence on the Effective
Date and is automatically renewed each Anniversary Billing Date until
terminated as provided below.
16.2 Termination for Convenience. Customer may
terminate the MSA for convenience at any time as provided in Section 4.1
through the Customer Portal. If Customer terminates this MSA for convenience,
Customer shall pay SoftLayer all amounts that would be due within 5 days after
such termination. SoftLayer may terminate the MSA for convenience upon
providing Customer with notice of non-renewal at least 10 days prior to the
expiration of the Initial Term or any Renewal Term.
16.3 Termination for Breach. SoftLayer may
terminate the MSA immediately upon notice provided through the Customer Portal
if: (i) SoftLayer discovers that the information Customer provided to
SoftLayer about Customer’s proposed use of the Services or Account Information
was inaccurate or incomplete; (ii) if Customer is an individual, Customer
was not at least 18 years old or otherwise did not have the legal capacity
to enter into the MSA, install, or accept Services at the time Customer
submitted the Order, or if Customer is an entity, the individual submitting the
Order for Customer did not have the legal right or authority to enter into the
MSA, install or accept Services on behalf of the person represented to be the
Customer; (iii) Customer payment of any invoiced amount is overdue, and
Customer does not pay the undisputed overdue amount within 5 days of the
due date; (iv) Customer use of the Services or Customer End Users use of
the Customer Offering in violation of this MSA and fails to remedy any
violation within 5 days of SoftLayer’s written notice; (v) Customer or
Customer End User violates the AUP; (vi) Customer’s account has been suspended
for 30 days or more; (vii) Customer has multiple violations of the MSA; or
(viii) Customer fails to comply with any other provision of this MSA and
does not remedy the failure within 30 days of SoftLayer notice to Customer
describing the failure. SoftLayer will give Customer written notice of
termination under this paragraph unless SoftLayer determines, in SoftLayer’s
reasonable commercial judgment, that a termination on shorter or
contemporaneous notice is necessary to protect SoftLayer or its other customers
from operational, security, or other risks. A breach of the Flow-Through
Provision shall be deemed to be a breach of the MSA.
16.4 Access to Customer Content. The deletion of
Customer Content is automatic upon termination or expiration of the MSA.
Consequently, unless SoftLayer determines otherwise, Customer will not have
access to Customer Content, and SoftLayer may immediately erase or delete
Customer Content from its computer infrastructure after the effective date of
termination or expiration of this MSA.
16.5 Effect of Termination. Upon expiration or
termination of the MSA, Customer must discontinue use of the Services and
relinquish use of the IP addresses and server names assigned to Customer by
SoftLayer and any other materials provided to Customer by SoftLayer in
connection with the Services, including pointing the DNS for Customer domain
name(s) away from the Services. SoftLayer will have no obligation to provide
any transition services or access to data except as expressly stated in Section
17. U.S. GOVERNMENT CUSTOMERS AND U.S. GOVERNMENT RIGHTS.
SoftLayer provides the Services for ultimate federal government
end use solely in accordance with the following license rights to use, modify,
reproduce, release, perform, display, or disclose: Government technical data
and software rights related to the Services include only those rights
customarily provided to the public as defined in this MSA. This customary
commercial license is provided in accordance with the Federal Acquisition
Regulation (“FAR”) at 48 C.F.R. 12.211 (Technical Data) and FAR 12.212
(Software) for civilian agencies of the federal government, and, for Department
of Defense transactions, the Defense Federal Acquisition Regulation Supplement
(“DFARS”) at 48 C.F.R. 252.227-7015 (Technical Data – Commercial Items), 48
C.F.R. 227.7202-3 (Rights in Commercial Computer Software or Computer Software
Documentation). This U.S. Government Rights clause, consistent with 48 C.F.R.
12.211, 48 C.F.R. 27.212 (federal civilian agencies) or 48 C.F.R. 227.7202-4
(DoD agencies) is in lieu of, and supersedes, any other FAR, DFARS, or other
clause or provision that addresses U.S. Government rights in computer software,
computer software documentation or technical data related to the SoftLayer
Commercial Computer Software and Commercial Computer Software Documentation
licensed under this MSA or in any contract or subcontract under which this
SoftLayer Commercial Computer Software and Commercial Computer Software
Documentation is acquired or licensed. If a government agency has a need for
rights not conveyed under these terms, it must negotiate with SoftLayer to
determine if there are acceptable terms for transferring such rights, and a
mutually acceptable written addendum specifically conveying such rights must be
included in writing and agreed to by SoftLayer in any applicable contract or
18. THIRD PARTIES.
Unless otherwise agreed in writing, SoftLayer will provide
support only to Customer, not to Customer End User, Customer Affiliate, Third
Party or Third Party Affiliate to whom Customer provides access to use the
Services or the Customer Offering. There are no Third Party beneficiaries to
the Agreement, meaning that Third Parties do not have any rights against either
SoftLayer or Customer under the MSA.
19.1 Changes to the MSA. As noted in the recitals, SoftLayer may modify the terms and
conditions of this MSA as provided below. SoftLayer will notify its Customers
through the Customer Portal of any such modifications and all modifications
shall be effective upon their posting on the Customer Portal. It is the
Customer’s responsibility to review the Customer Portal for such modifications
on a frequent basis If Customer continues to use the Services following any
such modification such use will be deemed acceptance of such modification by
Customer. Any modifications requested by Customer to any of the terms of the
MSA must be approved in writing by SoftLayer.
19.2 Certain Employment Issues.
If Customer’s employees or third parties which have been contracted by Customer
for rendering contractually agreed services that are in all material respects
equivalent to the Services prior to the beginning of this Agreement assert the
transfer of their employment relationship or claims thereto against SoftLayer
under EU Directive 2001/23/EC or similar national legislation, Customer shall
use its best efforts to either prevent the transfer of the employment
relationship or to hold off such claims. Customer shall hold harmless and
indemnify SoftLayer from all prosecution costs incurred in connection with the
transfer prevention as well as from any compensation payments to the employee
and fees for any external legal counsel, as well as any and all incurred costs
and financial claims of the employee or third party that arise from or are due
to a claim of further employment or re-employment. These expenses include costs
or salary, health insurance, social security contributions, voluntary and legal
pension contributions, company pension scheme, pension funds and any severance
costs in line with SoftLayer’s standard generally-applicable policy.
19.3 Notices. Customer
communications regarding the Services should be sent through the Customer
Portal except for the following types of notices: for
breach, indemnification, or other non-routine legal matters, Customer should
send it by electronic mail and first-class United States mail to:
SoftLayer Technologies, Inc., an IBM Company
ATTN: Legal Department
4849 Alpha Road
Dallas TX 75244
Phone: 1 (214) 442-0600
SoftLayer’s communications regarding the Services and legal
notices will be sent through the Customer Portal. Notices are deemed received
as of the time delivered. Notices must be given in the English language.
19.4 Export Matters. If Customer chooses to use
these Services, Customer does so on its own initiative and is responsible for
compliance with applicable laws. Customer agrees to comply with all
restrictions and regulations of the U.S. Department of Commerce and any other
United States or foreign agencies and authorities in connection with Customer’s
and Customer End Users’ use of these Services and to not, in violation of any
laws, transfer, or authorize the transfer, of any Services (a) into or for the
benefit of an entity located in any U.S. and/or U.N. embargoed countries or (b)
to anyone on the U.S. Treasury Department's List of Specially Designated
Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity
List of proliferation concern, or the U.S. State Department's Debarred Parties
List. By using these Services, Customer represents and warrants that Customer
and Customer End Users are not located in, under the control of, or a national
or resident of any such country or on any such list. In addition, Customer and
Customer End Users may not use the Services for the development, design,
manufacture, production, stockpiling, or use of nuclear, chemical or biological
weapons, weapons of mass destruction, or missiles, in a country listed in
Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740
of the United States Export Administration Regulations. Customer assumes
responsibility for compliance with laws and regulations applicable to export,
re-export or import of products, technology or technical data provided hereunder
and for obtaining required export and import authorizations. Customer and
Customer End Users will not transfer to or through the Services any data,
materials or other items controlled for export under the International Traffic
in Arms Regulations (“ITAR Data”) or other applicable laws unless SoftLayer has
agreed to the transfer and (i) Customer has provided SoftLayer not less than 10
days’ prior written notice that ITAR Data will be transferred to or through the
Services, (ii) Customer and/or Customer End User has received prior written
authorization from the U.S. Government to transfer the ITAR Data to SoftLayer,
and (iii) Customer agrees to provide SoftLayer with all necessary assistance to
enable SoftLayer to obtain such U.S. Government permission. Customer is
responsible, and will reimburse SoftLayer, for all costs, expenses or damages
incurred by SoftLayer in connection with Customer and Customer End User
transfer of ITAR Data.
19.5 Assignment/Subcontractors. Customer
may not assign the MSA or Customer rights and/or delegate Customer obligations
under the MSA without SoftLayer’s prior written consent. Any assignment or
transfer of the MSA by Customer in violation of this section will be void.
SoftLayer may assign the MSA to (i) its Affiliates and (ii) any entity as a
result of a merger or sale of all or substantially all of the assets of
SoftLayer to such entity and such entity agrees in writing to be bound by the
terms of the MSA. This MSA will be binding on and inure to the benefit of
Customer’s and SoftLayer’s respective permitted successors and permitted
assigns. However, SoftLayer may use Third Parties or Affiliates to provide all
or part of the Services. This provision does not apply to the Third Party
Services which are governed by separate agreements.
19.6 Force Majeure. Except for its rights in Sections 15 or 16, neither
SoftLayer nor Customer will be in violation of the Agreement if the failure to
perform the obligation is due to an event beyond either party’s control, such
as significant failure of a part of the power grid, sabotage, denial of service
attack, significant failure of the Internet, natural disaster, war, riot,
insurrection, epidemic, strikes or other organized labor action, terrorism, or
other events of a magnitude or type for which precautions are not generally
taken in the industry; provided however if the force majeure event continues
beyond thirty (30) days, the performing party may terminate the MSA.
19.7 Feedback. SoftLayer
shall own all right, title and interest in and to Feedback. Upon providing the
Feedback, Customer hereby irrevocably assigns to SoftLayer all right, title,
and interest in and to the intellectual property rights in the Feedback and
agrees to provide SoftLayer with any assistance SoftLayer may require to document,
perfect, and maintain SoftLayer’s rights in the Feedback.
19.8 Governing Law, Lawsuits. The
MSA is governed by the laws of the State of New York, exclusive of any choice
of law principle that would require the application of the law of a different
jurisdiction, and the laws of the United States of America, as applicable. The
application to the MSA of the United Nations Convention on the International
Sale of Goods is excluded in its entirety. The exclusive venue for all disputes
arising out of the MSA shall be in the state courts in Westchester County, New
York or federal district court for the southern district of New York, and the
parties each agree not to bring an action in any other venue. Customer waives
all objections to this venue and agrees not to dispute personal jurisdiction or
venue in these courts.
19.9 Relationship of the Parties. The parties’
relationship is that of independent contractors and not business partners.
Neither of the parties is the agent for the other, and neither party has the
right to bind the other on any agreement with a Third Party.
19.10 No Waiver. SoftLayer’s failure to exercise or
delay in exercising any of its rights under this MSA will not constitute a
waiver, forfeiture, or modification of such rights. SoftLayer’s waiver of any
right under this MSA will not constitute a waiver of any other right under this
Agreement or of the same right on another occasion. SoftLayer’s waiver of any
right under this MSA must be in writing.
19.11 Survival. All provisions that by their nature
are intended to survive expiration or termination of the MSA shall survive
expiration or termination of the MSA.
19.12 Integration. This MSA is the complete and
exclusive agreement between Customer and SoftLayer regarding its subject matter
and supersedes and replaces any agreement (including without limitation any
computer infrastructure hosting and related agreements between Customer and The
Planet.com Internet Services, Inc.), understanding, or communication, whether
written or oral, prior or contemporaneous.
19.13 Severability. If any part of this MSA is
found unenforceable by a court or other tribunal, the rest of the MSA will
nonetheless continue in effect, and the parties agree that any court or other tribunal
may reform the unenforceable part if it is possible to do so consistent with
the material economic incentives of the parties resulting in this MSA.
19.14 Language. The official language of the MSA
shall be the English language and no translation into any other language may be
used in its interpretation. All services, support, notices, designations,
specifications, and communications will be provided in the English language.
Service Level Agreement (“SLA”)
The SLA is incorporated into the MSA and applicable to all
Services delivered to Customers. This SLA does not apply to the availability of
Third Party Services which are subject to the TPS Agreements. The SLA is
binding only on the Customer and SoftLayer and does not apply to any Third
Parties, including Customer End Users. The issuance of SLA Credits (defined
below) is the sole and exclusive remedy of Customer and SoftLayer’s sole and
exclusive obligation, for any failure by SoftLayer to satisfy the requirements
set forth in the SLA.
SLA Credit Claim
To claim a credit the Customer shall follow the Approved
Procedure within seven (7) days of the end of the Claimed Outage. The claim
will be reviewed by SoftLayer, any credit for Verified Outages (“SLA Credits”)
shall be issued as provided below.
“Claimed Outage” means the period (measured in minutes)
during which Customer claims a Loss of Service during a Measurement Period as
reported using the Approved Procedure.
“Excluded Minutes” means the period of any outage measured
in minutes due to the exclusions set forth in the SLA Credit Exclusion in the
“Measurement Period” means the relevant Initial Term or
“Qualifying Outage Minutes” mean the aggregate of all
minutes of a Verified Outage during a Measurement Period, minus any Excluded
Minutes in that Measurement Period.
“Services” means the services ordered by Customer and
accepted by SoftLayer as provided in the MSA.
“Loss of Services” means the Customer’s inability to
connect to the SoftLayer data centers providing the Services to access either
(i) the Customer Portal or (ii) a Service. If Customer can connect to one of
the SoftLayer data centers to access either the Customer Portal or any of the
Services, there is no Loss of Services, whether or not Customer can use the
“Verified Outage” means a Claimed Outage for a particular
Service that has been verified by SoftLayer using its monitoring logs of
accessibility of the SoftLayer data centers or any of the Services.
Public Network: SoftLayer will use reasonable efforts to
provide a service level of 100% for the Public Network.
Private Network: SoftLayer will use reasonable efforts to
meet the service level of 100% for the Private Network.
Customer Portal: SoftLayer will use reasonable efforts to
meet the service level of 100% for access to the Customer Portal.
Redundant Infrastructure: SoftLayer will use reasonable
efforts to meet the service level of 100% for access to the power and HVAC
services provided to Customers.
For each 30 continuous minute period of Qualifying Outage Minutes
for a Service in a Measurement Period, SoftLayer shall provide a SLA Credit of
5% of the fees for the relevant Service which was subject to the Loss of Service
during the Measurement Period. Any period of Qualifying Outage Minutes for a
Service which is less than 30 continuous minutes shall not be eligible for an
award of SLA Credits. The Customer cannot combine alleged Claimed Outages for
different Services (such as Public Network and Private Network) to meet this
calculation. The calculation of SLA Credits for failure of hardware replacement
or hardware upgrade shall be as set forth respectively, in Table A and Table B.
Customer is eligible to receive SLA Credit, subject to the
The Customer’s identified master administrative user will report a
Claimed Outage by opening a ticket on the Customer Portal. The ticket must
include Service type, IP Address, dates and times, error messages received (if
any), contact information, and full description of the interruption of Service
including logs, if applicable.
In order to receive a SLA Credit, Customer must submit a report of
Claimed Outage to the Customer Portal within seven (7) days of the end of the
Claimed Outage after the technical issues have been resolved.
SoftLayer will review Claimed Outages against Verified Outages.
SoftLayer’s determination of SLA Credits is final.
Customer agrees to pay all invoices in full while a Claimed Outage is
being reviewed or SLA Credit is being determined.
SoftLayer will communicate the SLA Credits to Customer through SoftLayer
accounting and the ticket will be updated, provided that, the SLA Credit may
not be used to reduce the payments due in a Renewal Term below zero. SoftLayer
will apply the SLA Credits to the Customer’s future invoices for the relevant
Services subject to SoftLayer’s standard policies.
Customers who at the time of the report of the Claimed Outage are
not current on their payment of the fees for the Services do not qualify for
SLA Credits for such Claimed Outages. In addition, Customers who have not paid
their fees when due for the Services three or more times in the previous twelve
calendar months do not qualify for SLA Credits.
Use of SLA Credits
SLA Credits may be used solely for future payments due for the
particular Service or failure of other obligations (such as hardware) for which
the Service Credits are issued. The SLA Credits may not be sold or transferred
to other parties. SLA Credits may not be used until any Customer violations of
the MSA are resolved to SoftLayer’s reasonable satisfaction. Any Customer
making false or duplicative claims for Claimed Outages will incur a one-time
charge of $50 per incident for such claims. False or duplicative claims are
also a violation of the MSA and may, in SoftLayer’s sole discretion, result in
a suspension of Services. SLA Credits shall expire on the termination or
expiration of the MSA.
SLA Credit Exclusion
Service Level Credits do not apply for periods during which the
Services are not available for the following reasons:
SoftLayer or its third party service providers performing system
upgrades, enhancements and routine maintenance activities which are announced
on the Customer Portal upon two days advance notice or for maintenance
determined by SoftLayer to be an emergency upon notice provided through the
Customer Portal (“Scheduled Maintenance”);
Customer use of the Services or any Customer End User’s use of the
Customer Offering in violation of the MSA;
Issues relating to Customer Content;
Problems with Customer’s access to Internet;
System administration, commands, file transfers performed by Customer
Events described in the Force Majeure provision;
Suspension of Customer’s access to the Services as provided in the MSA;
Violation of the AUP;
Problems caused by Customer’s use of the Services or any Customer End
User’s use of the Customer Offering after SoftLayer advised Customer or any
Customer End User to modify such use, if Customer or any Customer End User did not
modify its use as advised;
Problems arising from Customer or any Third Party’s software, hardware,
or other technology or equipment.
Special Obligations relating to Hardware Replacement and
Hardware Replacement: SoftLayer will use reasonable
efforts to replace failed hardware and hardware components located within our
data centers at a service level of two hours after SoftLayer verification of
Customer’s notification in the Customer Portal ticketing system of a hardware
failure. This response period does not include time required to reload the
operating system or applications. If the installation does not meet this
service level, Customer shall be eligible for SLA Credits as provided in Table
A below for the future fees directly related to the hardware if the Customer
follows the Approved Procedure.
Hardware Upgrades: SoftLayer will use reasonable efforts
to ensure that all planned hardware upgrades will commence and be completed at
a service level within two hours of hardware upgrade maintenance periods that
have been scheduled and confirmed in advance through the online ticketing
system in the Customer Portal. This response period does not include time
required to reload the operating system or applications. If the installation does
not meet this service level, Customer shall be eligible for SLA Credits as
provided in Table B below for the future fees directly related to the hardware
upgrade if the Customer follows the Approved Procedure.
Table A: Hardware Replacement
Table B: Hardware Upgrade
2 hours or less
2 hours or less
2.1 to 6 hours
Twenty Percent (“20%”)
2.1 to 6 hours
Twenty Percent (“20%”)
6.1 to 10 hours
Forty Percent (“40%”)
6.1 to 10 hours
Forty Percent (“40%”)
10.1 to 14 hours
Sixty Percent (“60%”)
10.1 to 14 hours
Sixty Percent (“60%”)
14.1 to 18 hours
Eighty Percent (“80%”)
14.1 to 18 hours
Eighty Percent (“80%”)
18 hours +
One Hundred Percent (“100%”)
18 hours +
One Hundred Percent (“100%”)
Acceptable Use Policy (“AUP”)
SoftLayer is dedicated to the use of the Internet to improve the lives
of individuals throughout the world. Our goal is to deliver enterprise quality
on-demand IT Services to all of our Customers at a reasonable price and make
available the benefits of the Internet as broadly as possible. The purpose of
this AUP is to inform all Customers of the acceptable uses of the Services.
SoftLayer is committed to encouraging the use of the Internet through its
Services and Third Party Services, but such use must be consistent with the
laws and regulations governing use of the Internet and must protect the right
of its other customers to use its Services. The AUP is designed to achieve
these goals. Customer agrees to comply with the AUP and is responsible for the
use of the Services and Third Party Services by all entities and individuals
whom Customer permits to use the Services, Third Party Services or the Customer
Offering. In addition to its rights under Section 19.1 of the Terms of Service,
SoftLayer has the right to change or modify the terms of the AUP at any time,
effective when posted to the Customer Portal. Customer’s use of the Services or
Third Party Services after changes to the AUP are posted shall constitute
acceptance of any changed or additional terms.
The Public Network of SoftLayer provides public Internet access
to Customer servers and data storage services on SoftLayer’s network. All
Customers are granted equal access to the Public Network.
The Private Network of SoftLayer provides Customer with secure
private network connectivity from Customer’s private backend network directly
to Customer servers and data storage devices on SoftLayer’s internal network
and to other Services. Customer may use the Private Network to upload/download
content, administer Customer servers and data storage devices, transmit
information between Customer servers and data storage devices, transmit
information between Customer’s private backend servers and Customer servers and
data storage devices provided by SoftLayer, administer the Customer Content,
retrieve data, access server consoles, and otherwise manage the Customer
Content. The Private Network can also be utilized for access during periods of
temporary suspension of Services to Customer as provided under the MSA.
The IP Address Policy (as described in the Terms of Services)
which may be changed from time to time at SoftLayer’s sole discretion, is
incorporated into this MSA by reference. Customer acknowledges and agrees to
adhere to the IP Address Policy. All IP Addresses assigned to Customer are
owned and managed by SoftLayer. Such IP Addresses are non-transferable, and
Customer retains no ownership or transfer rights to such IP Addresses. All IP
Addresses are assigned by the SoftLayer engineering team on a per VLAN, per
server basis. Attempted use by Customer of any unallocated IP Address or any IP
Addresses on VLANs not assigned to Customer is a violation of this AUP.
The following list provides a number of general prohibited uses
of the Services and/or Third Party Services that are violations of this AUP.
Please note that the following list does not represent a comprehensive or
complete list of all prohibited uses.
Unlawful Activities: The Services and/or Third Party
Services shall not be used in violation of any criminal, civil or
administrative violation of any applicable local, state, provincial, federal,
national or international law, treaty, court order, ordinance, regulation or
administrative rule. This includes, but is not limited to:
harassment and abuse of any individual, organization or business
websites or other sites advocating human violence and hate crimes based upon
religion, ethnicity or country of origin
high yield investment plans, Ponzi schemes or linking to and or advertising
Child Pornography: In particular, the Services and/or Third
Party Services shall not be used to publish, submit, receive, upload, download,
post, use, copy or otherwise produce, transmit, distribute or store child
Unsolicited Email: The use of the Services and/or Third
Party Services to send or receive mass unsolicited email (“SPAM”). This
prohibition includes the direct sending and receiving of such messages, support
of such messages via web page, splash page or other related sites, or the
advertisement of such services. The falsifying of packet header, sender, or
user information whether in whole or in part to mask the identity of the
sender, originator or point of origin or knowingly deleting any author
attributions, legal notices or proprietary designations or labels in a file
that the Customer mails or sends.
Email Bombing: The sending, return, bouncing or forwarding
of email to specified user(s) in an attempt to interfere with or overflow email
Proxy Email: The use of the Services and/or Third Party
Services as a proxy email server to forward email to unrelated Third Parties.
UseNet SPAM: The use of Services to send, receive, forward,
or post UseNet unsolicited email or posts. This includes UseNet services
located within the SoftLayer network or unrelated networks of Third Parties.
Hacking: The use of the Services and/or Third Party
Services or hacking, attacking, gaining access to, breaching, circumventing or
testing the vulnerability of the user authentication or security of any host,
network, server, personal computer, network access and control devices,
software or data without express authorization of the owner of the system or
Threatening Material or Content: The Services and/or Third
Party Services shall not be used to host, post, transmit, or retransmit any
content or material that harasses, or threatens the health or safety of others.
In addition, SoftLayer reserves the right to decline to provide Services and/or
Third Party Services if the content is determined by SoftLayer to be obscene,
indecent, hateful, malicious, racist, defamatory, fraudulent, libelous,
treasonous, excessively violent or promoting the use of violence or otherwise
harmful to others.
Violation of Intellectual Property Rights: The Services
and/or Third Party Services shall not be used to publish, submit/receive,
upload/download, post, use, copy or otherwise reproduce, transmit, retransmit,
distribute or store any content/material or to engage in any activity that
infringes, misappropriates or otherwise violates the intellectual property
rights or privacy or publicity rights of SoftLayer or any other party,
including but not limited to any rights protected by any copyright, patent,
trademark laws, trade secret, trade dress, right of privacy, right of
publicity, moral rights or other intellectual property right now known or later
recognized by statute, judicial decision or regulation. Please refer to
http://www.softlayer.com/about/legal to file complaints or counter
notifications related to copyright or trademark claims.
Distribution of Malware: The storage, distribution,
fabrication, or use of malware, including without limitation, virus software,
root kits, password crackers, adware, key stroke capture programs and other
programs normally used in malicious activity is prohibited. The use of such
programs in the normal ordinary course of business, however, may be requested
by Customer and approved by SoftLayer on a case by case basis. Example:
Security company using the Services to analyze the latest root kit for new
Phishing: Any activity designed to collect personal
information (name, account numbers, usernames, passwords, etc.) under false
pretense. Splash pages, phishing forms, email distribution, proxy email or any
activity related to phishing activities may result in the immediate suspension
of Customer’s account.
Violation of Agreements relating to Third Party Services:
Any activity which violates any TPS Agreements.
Denial of Service: Any activity to implement or assist in
the implementation of denial of service attack. SoftLayer absolutely prohibits
the use of Services for the origination, propagation or control of denial of
service attacks (“DoS”) or distributed denial of service attacks (“DDoS”).
Customers may not utilize the Services to perform DoS or DDoS mitigation
activities (such as service proxying or data scrubbing) which may result in
attracting inbound denial of service attacks toward the Services. Any relation
to DoS or DDoS type activity is a direct violation of SoftLayer’s AUP.
Reporting Violation of the Acceptable Use Policy
SoftLayer accepts reports of alleged violations of this AUP via
email sent to email@example.com. Reports
of alleged violations must be verified and must include the name and contact
information of the complaining party, and the IP address or website allegedly
in violation, and a description of the alleged violation. Unless otherwise
required by law, such as the DMCA, SoftLayer owes no duty to Third Parties
reporting alleged violations. SoftLayer will review all verified Third Party
reports and will take such actions as it deems appropriate in its sole
SoftLayer will comply with and respond to valid (as SoftLayer
determines in its sole discretion) subpoenas, warrants, and/or court orders. If
permitted by applicable law or regulation, SoftLayer will forward such
subpoenas, warrants, and/or orders to Customer and Customer may respond;
however, SoftLayer reserves the right to respond to any such subpoena, warrant
and/or order if it is the named party in such subpoena, warrant, and/or order.
Methods of Resolution for Violations of SoftLayer’s
Acceptable Use Policy
The goal of our Methods of Resolution is to mitigate service
interruptions while resolving potential violations under this AUP. Our sales,
support and abuse staffs are dedicated to working with the Customer in
resolving potential violations, and are available via phone, ticket, or email.
The Methods of Resolution below is provided for informational purposes only and
forms the framework and guidance with respect to resolving potential
violations, but in the event of any conflicts between the Acceptable Use Policy
(in particular its enforcement) and Terms of Services, the Terms of Services
shall control. Timing for resolution differs according to the degree of the
violation, the nature of the violation, involvement of law enforcement,
involvement of third party litigation, or other related factors.
Step 1: First alleged violation of AUP.
A ticket will be generated under SoftLayer to provide the Customer’s
master user with information regarding the potential violation of SoftLayer’s
AUP. This is often a fact-finding email requiring further information or
notifying Customer of the potential violation and the required actions to
resolve the issue.
Step 2: Acknowledgement of violation of AUP.
A ticket is generated under the Customer’s master user account with information
specific to the violation. This ticket will also include any additional facts
about the situation and will notify Customer of the action required to resolve
Step 3: Violation of AUP disregarded, not
properly addressed, or continuing violation if a ticket has been disregarded,
not properly addressed, or resolved by the Customer for a specified period of
time. SoftLayer engineers will turn the public network port to the
specified dedicated services off. Access to the dedicated services may then be
achieved through the secure private service network for Customer resolution. As
soon as the violation is addressed, the public access shall be restored and
service will continue as normal.
Step 4: Failure to address violation and resolve
violation. If Customer fails to address the violation AND fails to
resolve the violation, a suspension of services shall occur. This is a last
resort for SoftLayer and only results when the Customer completely fails to
participate in SoftLayer’s resolution process. A permanent suspension of
services includes reclamation of all dedicated services and the destruction of
Disclaimer: SoftLayer retains the right, at its sole
discretion, to refuse new service to any individual, group, or business.
SoftLayer also retains the right to discontinue service to Customers with
excessive and/or multiple repeated violations.
Privacy Agreement (“PA”)
SoftLayer considers user privacy paramount, and SoftLayer
utilizes great care in keeping the information of the users of the Site
(including Customers) (“Users” or “You”) private and secure. SoftLayer adheres
to the U.S.-Swiss Safe Harbor Framework as well as the Safe Harbor Principles
as agreed to and set forth by the United States Department of Commerce and the
European Union (“EU”), http://export.gov/safeharbor/.
To demonstrate our firm commitment to privacy, the following agreement has been
created to explain our policies and procedures in relation to all data
collected. In this Privacy Agreement (“PA”) we describe the information that we
collect; how we use, disclose, and share your information; and how we protect
your information. Capitalized terms not defined in the PA are defined in the
Terms of Service. This PA does not apply to Third Party Services which are
governed by their own privacy policies.
Types of Data Collected
SoftLayer collects data related to our users through the
Automated means such as communication protocols and cookies
Online registration and online signup forms
Sales inquiries and transactions
Online Customer communications
Offline communications and interactions
Third party sources of information
Depending upon the method of collection and use, the data
collected may include information about the User from forms, registrations and
transactions (such as name, title, address, company, phone number and e-mail
address), financial/transaction information (such as credit card, card
verification value (cvv), and payment information), information about use of
Site (such as electronic communications protocols, web pages visited, and
cookies) and User preferences and privileges.
Electronic Communications Protocols and Cookies
SoftLayer may receive data from you as part of the communication
connection itself through the standard electronic greeting between your
computer and our servers. This information often consists of network routing
(where you came from), equipment information (browser type), internet protocol
address, date and time. At this time our server will also query your computer
to see if there are "cookies" previously set by softlayer.com to
facilitate log in or other site navigation procedures. A "cookie" is
a small piece of information sent by a web server to store in a web browser so
it can later be read back from that browser.
forms) to collect information about visitors' use of the Site and to facilitate
return visits. The information collected from cookies is tracked to enhance security
and/or to improve the functionality of the Site by avoiding duplicate data
entry, facilitating navigation, and increasing the relevance of content.
Cookies on the Site may collect the following information: a
unique identifier, User preferences and profile information used to personalize
the content that is shown, and User information to access SoftLayer's user
forums. Some cookies used by softlayer.com
may remain on the user's computer after they leave the Site, but the majority
is set to expire within thirty (“30”) – three hundred sixty five (“365”) days.
There may be some cookies on certain tools that are of longer duration. Cookies
may also be of benefit to you by creating a more streamlined login process,
keeping track of shopping cart additions or preserving order information
between sessions. In the future, as we enable further customization of the
Site, cookies will help in ensuring that information provided to you will be
the most relevant to your needs.
Browsers provide you with information and control over cookies.
You can set your web browser to alert you when a cookie is being used. You can
also get information on the duration of the cookie and what server your data is
being returned to. You then have the opportunity to accept or reject the
cookie. Additionally, you can set your browser to refuse all cookies or accept
only cookies returned to the originating servers. You can generally disable the
cookie feature on their browser without affecting their ability to use the
Site, except in some cases where cookies are used as an essential security
feature or to provide functionality necessary for transaction completion.
Users visiting the website through an IP address that is
associated with (a member state of) the European Union ("EU Users")
will by default only receive cookies that expire once they leave the website.
This may result in reduced website functionality. EU Users may opt-in to the
receipt of cookies of a longer duration by giving their consent in a pop-up
window or bar shown at the homepage of the website. Following their consent, EU
Users will receive all cookies discussed above and full website functionality
will be available. EU Users may choose to revoke their consent at any time by
deleting all cookies associated with SoftLayer through their browser settings
(as discussed above).
We may also engage Third Parties to track and analyze
non-personally and personally identifiable website data and to serve
advertisements. To do so, we may permit Third Parties to place cookies on
devices of to Users of our Site, where permitted by law, and, subject to your
right to opt-out through the Site “insert link”. We use the data collected by
such Third Parties to help us administer and improve the quality of the Site
and to analyze Site usage. Such Third Parties may combine the information that
we provide about you with other information that they have collected. These
Third Parties are required to use your information in accordance with this PA.
Customer is solely responsible for any processing or
international transfer of all PII in the Customer Content and agrees to comply
with all applicable rules, laws and regulations in any and all applicable regions
or countries related to the transfer of such PII. To the extent PII is subject
to rules, laws, regulations or the like implementing EU Data Protection
Directive 95/46/EC, SoftLayer will be considered a "data processor"
and will, as such, act on Customer’s instructions and implement security
measures in accordance with the MSA.
The Data We Collect and How We Use It
SoftLayer collects data from users for the following purposes:
To engage in transactions for service. Name, address, email, purchase details,
and credit card/payment information may be collected and stored as part of the
transaction history. The majority of the data collected under this category is
contact information. SoftLayer may need to share some of this data (address,
payment) with credit card clearing houses, banking institutions, and other
similarly situated Agents, who may require the information in order to complete
the transaction (as used here, “Agents” are persons or companies who act on
behalf of or under the direction of SoftLayer). SoftLayer will not transfer
information to any of its Agents unless it first either ascertains that the
Agent subscribes to the Safe Harbor Principles or is subject to the EU
Directive on Data Protection or another adequacy finding or enters into a
written agreement with such Agent requiring that the Agent provide at least the
same level of privacy protection as is required by the relevant Safe Harbor
To provide future service and support. Information collected for this
purpose is both contact data and information related to products and
service/support requested. This information is also used to provide service,
product update, and similar notices.
To select content, data may be collected to help create Site content and
navigation that is most relevant and user friendly. This includes data
collected as a result of site navigation, as well as data provided in forms.
To respond to user inquiries and requests for information. This data
includes registrations for online newsletters, opt-in mailing lists and
specific requests for further information.
To respond to law enforcement organizations, government officials, third
parties when compelled by subpoena, court order, or applicable law, or to
report or prevent suspected fraudulent or illegal activity in the use of the
Services. SoftLayer will notify Customer of the information request or
submission as, and if, allowed.
To our contractors who provide services or perform functions on our
To our Affiliates, if we do so their use and disclosure of your PII will
be subject to this PA.
If we are acquired by or merged with another company, if substantially
all of our assets are transferred to another company, or as part of a
bankruptcy proceeding, we may transfer the information we have collected from
you to another entity if applicable.
To provide various SoftLayer communities, such as resellers, with
relevant product alerts and updates. These updates are related to product
releases, prices, terms, special offers and associated campaigns. This data is
sent when the program member signs up for the relevant program or online
To better tailor marketing to User needs. We may use information from
User purchases and User-specified requirements to provide you with timely and
pertinent notices of SoftLayer product releases and service developments that
address your needs and specified requirements and/or which are similar to
products and services previously purchased by the User from SoftLayer.
To better respond to requests for service or quotes for product and
equipment purchase. SoftLayer will pass contact information to the appropriate
SoftLayer sales person, or reseller for follow-up related to SoftLayer products
From referral "tell a friend" function. If a User elects to
use our referral service for informing a friend about our Site, we ask them for
the friend's name and email address. SoftLayer will automatically send the
friend a one-time email inviting them to visit the Site and send a copy of said
e-mail to the User. The e-mail(s) sent shall clearly identify the sender of
such email(s). SoftLayer uses this data for the sole purpose of sending this
one-time email. Such email sent to a friend at User’s request will not be
stored for additional processing.
As a result of your participation in interactive discussions and public
forums. There are parts of the Site that permit you to participate in
interactive discussions. Some of these are moderated; all are subject to access
for technical reasons. SoftLayer does not control the content that Users post
and some may serve as public discussion forums. As in any interactive forum
open to many Users, you should carefully consider whether you wish to submit
data and should tailor any other content submitted accordingly.
Customer Portal, Customer Customization, Preferences and
New Customers are automatically registered for access at https://manage.softlayer.com. The Customer
Portal allows Customers the ability to create users, add/delete users,
add/delete user privileges and opt in (or out) of Services and mailing lists.
The Customer Portal provides the Customers with control over their preferences
for electronic information delivery.
SoftLayer has also provided the Customer’s master user the
ability to manage the Customer’s Account Information. We maintain the data and
allow the Customer’s master user to update it at any time. To change this
information, you must be a current Customer and login with a user ID and
password and follow the prompts to "update my profile" on the
Customer Portal. We continue to expand the profile of Services and information
that you may access and update.
Please note that some email communications are not subject to general
opt-out. These include communications related to downloads; communications
about sales transactions; information about software updates, patches and
fixes; disclosures to comply with legal requirements; and network upgrades or
other related maintenance for Service.
If an individual’s PII is to be (a) disclosed to a Third Party
who is not an Agent; or (b) used for a purpose that is incompatible with the
purpose(s) for which it was originally collected or subsequently authorized by
the individual, then the individual will be notified prior to such disclosure
and may opt-out of having the PII disclosed by responding to the email and/or
author of the notification, where such information shall be clearly set forth.
SoftLayer is concerned with the security of the data we have
collected and utilizes reasonable measures to prevent unauthorized access to
that information. These measures include policies, procedures, employee
training, physical access and technical elements relating to data access controls.
In addition, SoftLayer uses standard security protocols and mechanisms to
facilitate the exchange and the transmission of sensitive data, such as credit
card details. SoftLayer does not process PII in a way that is incompatible with
the purposes for which it has been collected or subsequently authorized by the
In the event that PII is acquired, or is reasonably believed to
have been acquired, by an unauthorized person and applicable law requires
notification, SoftLayer will notify the affected individual of the breach by
email or ticket on the Customer Portal or, if SoftLayer is unable to contact
the individual by email or ticket on the Customer Portal, then by regular mail.
Notice will be given promptly, consistent with the legitimate needs of law
enforcement and any measures necessary for SoftLayer or law enforcement to
determine the scope of the breach and to ensure or restore the integrity of the
data system. SoftLayer may delay notification if SoftLayer or a law enforcement
agency determines that the notification will impede a criminal investigation,
and in such case, notification will not be provided unless and until SoftLayer
or the agency determines that notification will not compromise the
SoftLayer has established internal mechanisms to verify its
any concerns about our processing of personal information by contacting
SoftLayer at the address below. SoftLayer will seek to resolve any concerns.
SoftLayer has also agreed to participate in the dispute resolution program
provided by the European Data Protection Authorities.
If we are going to use your PII in a manner different from that
stated at the time of collection, we will notify you via email. In addition, if
we make any material changes in our privacy practices that do not affect the
PII already stored in our database, we will notify you by email or post a
prominent notice on the Customer Portal notifying users of the change. In some
cases, when we post the notice, we will also email users who have opted to
receive communications from us, notifying them of the changes in our privacy
practices. We may update this policy from time to time to describe how new site
features affect our use of your PII and to let you know of new control and
preference features that we provide.
Contact Information and Inspection Rights
be addressed to:
Technologies, Inc., an IBM Company
ATTN: Legal Department
4849 Alpha Road
Dallas, TX 75244
Phone: 1 (214) 442-0600
If at any time you decide that you no longer desire that we hold,
use, correct or supplement any of your PII, receive information regarding any
PII processed in relation to you or you wish to change the manner in which your
PII may be used, please let us know by contacting us as set forth above.
[PLEASE NOTE THAT
ADDENDA THAT MAY APPLY TO YOUR MSA ARE PROVIDED BELOW.]
NOTE: If Customer downloads or uses any SoftLayer applications
(“Licensed Application”) that run on the Apple Inc. (“Apple”) operating system
(“iOS”), such as with the iPhone, iPod touch, iPad or other related device
using such iOS, the following terms apply and Customer must agree to and
acknowledge these terms in addition to those contained in SoftLayer’s Master
Acknowledgement: SoftLayer and Customer acknowledge that the Master
Services Agreement (“MSA”), also commonly referred to as the End User License
Agreement (“EULA”), is concluded between SoftLayer and Customer only, and not
with Apple Inc. (“Apple”), and SoftLayer, not Apple, is solely responsible for
the Licensed Application and the content thereof. SoftLayer’s MSA requirements
and usage rules for Licensed Applications are not less restrictive than the
Rules set forth for Licensed
Applications in, and are not otherwise in conflict with, the App Store terms of
service as of the Effective Date, which SoftLayer and Customer acknowledge
having had the opportunity to review.
Scope of License: The license granted to Customer for the Licensed
Application is limited to a non-transferable license to use the Licensed
Application on any iOS that Customer owns or controls and as permitted by the
Usage Rules set forth in the App Store terms of service
Maintenance and Support: SoftLayer is solely responsible for providing
any maintenance and support services with respect to the Licensed Application,
as specified in the EULA, or as required under applicable law. SoftLayer and
Customer acknowledge that Apple has no obligation whatsoever to furnish any
maintenance and support services with respect to the Licensed Application.
Warranty: SoftLayer is solely responsible for any product warranties,
whether express or implied by law, to the extent not otherwise disclaimed. In
the event of any failure of the Licensed Application to conform to any
applicable warranty, Customer may notify Apple, and Apple will refund the
purchase price for the Licensed Application to Customer; and that, to the
maximum extent permitted by applicable law, Apple will have no other warranty
obligation whatsoever with respect to the Licensed Application, and any other
claims, losses, liabilities, damages, costs or expenses attributable to any
failure to conform to any warranty will be SoftLayer’s sole responsibility.
Product Claims: SoftLayer and Customer acknowledge that SoftLayer, not
Apple, is responsible for addressing any claims of Customer or any third party
relating to the Licensed Application or Customer’s possession and/or use of
that Licensed Application, including, but not limited to: (i) product liability
claims; (ii) any claim that the Licensed Application fails to conform to any
applicable legal or regulatory requirement; and (iii) claims arising under
consumer protection or similar legislation. SoftLayer’s MSA does not limit its
liability to Customer beyond what is permitted by applicable law.
Intellectual Property Rights: SoftLayer and Customer acknowledge that,
in the event of any third party claim that the Licensed Application or
Customer’s possession and use of that Licensed Application infringes that third
party’s intellectual property rights, SoftLayer and/or Customer, not Apple,
will be solely responsible for the investigation, defense, settlement and
discharge of any such intellectual property infringement claim.
Contact Information: Any Customer questions, complaints or claims with
respect to the Licensed Application should be directed to:
SoftLayer Technologies, Inc., an IBM Company
ATTN: Sales Department
4849 Alpha Road
Dallas, TX 75244
Phone: 1 (214) 442-0600
Third Party Beneficiary: SoftLayer and Customer acknowledge and agree
that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA,
and that, upon Customer’s acceptance of the terms and conditions of the EULA,
Apple will have the right (and will be deemed to have accepted the right) to
enforce the EULA against Customer as a third party beneficiary thereof.
CONTRACTING PARTY ADDENDUM
(APPLIES TO ANY NON-U.S. BASED CUSTOMER)
This Contracting Party Addendum (“CP Addendum”) is entered into
by and among SoftLayer Technologies, Inc., an IBM Company, a Delaware
corporation, SoftLayer Dutch Holdings, B.V., an IBM Company, a company incorporated
in Amsterdam, Registration Number 52461041 (“SoftLayer Dutch Holdings, B.V.”),
SoftLayer Technologies Asia Private Limited, an IBM Company, a company
incorporated in Singapore, Registration Number 201118816K (“SoftLayer
Technologies Asia Private Limited”), and Customer. All capitalized terms used
in this CP Addendum that are not defined in this CP Addendum shall have the
meanings ascribed to such terms in the MSA.
SoftLayer Technologies, Inc., an IBM Company and Customer are
parties to the MSA;
Customer used a non-U.S. billing address to order products and
services under the MSA (“Non-U.S. Based Customer” as further described below);
The parties now intend to amend the MSA as provided in this CP
NOW THEREFORE, in consideration of the mutual premises contained
in this CP Addendum, the parties agree as follows:
Customer represents and warrants that in connection with ordering
products and services under the MSA, it provided a billing address outside of
the United States and any territory of the United States (“Non-U.S. Based
Each party acknowledges and agrees that SoftLayer Dutch Holdings B.V. or
SoftLayer Technologies Asia Private Limited will be the counterparty to any MSA
with a Non-U.S. Based Customer. Given that Customer is a Non-U.S. Based
Customer, each party further acknowledges and agrees (a) any reference to
“SoftLayer Technologies, Inc., an IBM Company” and/or “SoftLayer” shall be
replaced to refer to “SoftLayer Dutch Holdings B.V., a company incorporated in
Amsterdam, Registration Number 52461041” or “SoftLayer Technologies Asia
Private Limited, a company incorporated in Singapore, Registration Number
201118816K”, as applicable and (b) any address that refers to “4849 Alpha Road,
Dallas, Texas 75244” shall be replaced to refer to “SoftLayer Dutch Holdings,
B.V., Paul van Vlissingenstraat 16, 1096BK Amsterdam” or “SoftLayer
Technologies Asia Private Limited, 29A International Business Park Singapore
609934”, as applicable.
This CP Addendum shall be effective as of the effective date of the MSA.
In the event of any conflict between the terms of this CP Addendum and
the MSA, the terms of this CP Addendum shall control.
Except as expressly amended in this CP Addendum, all other terms and
conditions of the MSA shall continue in full force and effect in accordance
with the provisions of the MSA.
SINGAPORE PRODUCTS AND
(APPLIES TO ANY CUSTOMER WHETHER AN U.S. BASED OR NON-U.S. BASED CUSTOMER THAT
ORDERS PRODUCTS AND SERVICES FROM A SINGAPORE DATACENTER)
This Singapore Products and Services Addendum (“SPS Addendum”) is
entered into by and among SoftLayer Technologies, Inc., an IBM Company, a
Delaware corporation, SoftLayer Dutch Holdings B.V., a company incorporated in
Amsterdam, Registration Number 5246104, SoftLayer Technologies Asia Private
Limited, a company incorporated in Singapore, Registration Number 201118816K,
and Customer. All capitalized terms used in this SPS Addendum that are not
defined in this SPS Addendum shall have the meanings ascribed to such terms in
SoftLayer Technologies, Inc., an IBM Company, SoftLayer Dutch
Holdings, B.V., and/or SoftLayer Technologies Asia Private Limited and Customer
are parties to the MSA;
Customer has ordered products and services from a SoftLayer
Singapore datacenter (“Singapore Services”);
The parties now intend to amend the MSA as provided in this SPS
NOW THEREFORE, in consideration of the mutual premises contained
in this SPS Addendum, the parties agree as follows:
The Customer represents and warrants that it has ordered Singapore
The parties acknowledge and agree that a United States (which includes
any territory of the United States) based Customer (“U.S. Based Customer”) and
SoftLayer Technologies, Inc., an IBM Company will be the contracting parties to
the MSA. The parties further agree that in the event that a U.S. Based Customer
obtains Singapore Services, SoftLayer Technologies, Inc., an IBM Company will
assign, transfer, and/or subcontract its service provider’s duties, rights, and
obligations under the MSA to SoftLayer Dutch Holdings B.V., and/or SoftLayer
Technologies Asia Private Limited, and such applicable entity shall perform
and/or hold such duties, rights, and obligations under the MSA.
In the event that any of the Singapore Services are within the scope of
Singapore’s Telecom Competition Code 2005 (“Telco Code”), each party
acknowledges and agrees that:
a. Section 16
of the TOS is hereby amended to include Section 16.6, and Section 16.6 of the
TOS will read in its entirety as follows: “16.6 Customer acknowledges and
agrees that each of Customer’s obligations described in this MSA is a material
and essential obligation of Customer; that nonperformance of such obligations
will adversely and substantially affect SoftLayer; and that exercise by
SoftLayer of the rights and remedies set forth in this MSA is appropriate and
b. Section 5.7
of the TOS (“Refunds & Disputes”) is hereby amended so that it reads, in
its entirety, as follows: “5.7 Refunds & Disputes: The parties acknowledge
that Customer is responsible for paying SoftLayer for all Services ordered
and/or engaged under this MSA and Customer is not responsible for paying for
products or services and/or engagements that Customer did not order or consent
to receive under this MSA. All fees paid for Services to SoftLayer are
non-refundable. If the Customer believes that the bills are in error, the Customer’s
sole and exclusive remedy is to seek SLA credits through the Customer Portal by
opening an accounting ticket to give notice to SoftLayer within 30 days of the
receipt of the disputed bill. Any invoice not disputed by Customer in
accordance with Section 5.7 within 30 days of receipt of invoice shall be
conclusively accepted by Customer as correct. Customer shall not chargeback any
credit card payments to SoftLayer and any such chargeback will result in an
additional payment to SoftLayer of up to $500 which is a reasonable estimate of
SoftLayer’s additional administrative costs. Customer is responsible for any
fees and costs (including, but not limited to, reasonable attorneys’ fees,
court costs and collection agency fees) incurred by SoftLayer in enforcing
collection of fees. Customer acknowledges and agrees that the payment
provisions and procedures in this MSA are appropriate and reasonable.”
party will adhere to the applicable dispute resolutions requirements set forth
in the Telco Code.
Customer acknowledges that the terms and conditions of the Privacy
Agreement of the MSA are appropriate and reasonable and expressly consents to
SoftLayer Technologies, Inc., an IBM Company, SoftLayer Dutch Holdings B.V.,
and/or SoftLayer Technologies Asia Private Limited use of Customer data as set
forth in the Privacy Agreement of the MSA.
This SPS Addendum shall be effective as of the effective date of the
In the event of any conflict between the terms of this SPS Addendum and
the MSA, the terms of this SPS Addendum shall control.
Except as expressly amended in this SPS Addendum, all other terms and
conditions of the MSA shall continue in full force and effect in accordance
with the provisions of the MSA.