Service Agreement

AZZARON™
SERVICES AGREEMENT

This Master Agreement (“Agreement”) is between Azzaron, Inc. (hereinafter “Azzaron”), an Arizona corporation and you (hereinafter “Client”).

1.    GENERAL INFORMATION.
1.1.    This Agreement governs the provisions under which Client:
1.1.1.    Is granted access by Azzaron to infrastructural requirements by virtue of servers, software, and other related equipment owned by Azzaron.
1.1.2.    Will be supported by Azzaron.
1.2.    During the Term of this Agreement, Azzaron, will provide the Subscription Services described in this Agreement and defined on the Order Form.

2.    FEES AND PAYMENT SCHEDULE.
2.1.    Fees for Subscription Services (as outlined in the Addendum) are invoiced to Client on a Monthly basis, one month in advance.  Fee totals are subject to change based on monthly audits for the number of users.
2.2.    Fees assessed per unit (i.e. user, workstation) are fixed for the length of the contract period and are subject to an annual increase of 5% at Azzaron’s sole discretion.
2.3.    Invoices are sent electronically to Client the month preceding the service period.  Azzaron reserves the right to suspend services without additional notice if payment is not received within 30 days of the billing date due as indicated on the invoices.
2.4.    Any and all Services requested by Client that fall outside of the terms of this Agreement will be considered additional Projects and will be quoted and billed as separate, individual Services.

3.    TAXES.
3.1.    All applicable Federal, State or Local Sales and Service Taxes shall be added to each invoice for services or materials rendered under this Agreement.  Client shall pay any such taxes unless a valid exemption certificate is furnished to Azzaron for the applicable state.
3.2.    Azzaron assumes all capital and property tax liability for software and hardware provided for use by the customer as part of the Subscription Service.

4.    HOSTED INFRASTRUCTURE.
4.1.    Azzaron grants Client a right to access the Infrastructural Services for the contract period.
4.2.    The Infrastructure is located on servers and related equipment that are controlled by Azzaron.
4.3.    Client must have a high speed Internet connection and suitable hardware and software that is compatible with the infrastructural requirements.  Azzaron bears no responsibility to provide Client with any of the requirements needed to access the Subscription Services.  While Azzaron provides the Infrastructure, it is the customer’s sole responsibility to maintain all the requirements and renewals of their licenses not covered in the fees (see Addendum).
4.4.    Azzaron regularly upgrades its Infrastructure at the Data Center resulting in periodic changes to the Services. Some of these changes will occur automatically, while others may require Client to schedule and implement the changes. The changes may require Client to upgrade its equipment in order to make efficient use of the infrastructure.  Azzaron will provide Client with advance notification in this case.
4.5.    Although Client may have legitimate business reasons for not upgrading to a new version when it becomes available, Azzaron will only support older versions in strict accordance with its policy.  When an old version used by Client is at end-of-life, Azzaron may unilaterally remove Client’s access to that version and upgrade Client to a new version.

5.    SERVICES COVERAGE.
5.1.    The Subscription Services include:
5.1.1.    All server software updates and installs.
5.1.2.    All server software upgrades for software included in the Agreement.
5.1.3.    All necessary datacenter hardware to provide a suitable operating environment for software included in the Agreement as well as customer software installed and specified in the Order Form.
5.1.4.    All datacenter hardware upgrades, keeping with current accepted industry best practices.
5.1.5.    Remote Helpdesk with any type of suitable user endpoint.
5.2.    Remote Helpdesk coverage requires users have a working Internet connection and includes:
5.2.1.    Adding, configuring, deleting, and suspending users.
5.2.2.    Troubleshooting client-side connectivity issues, including network equipment and ISP as far as Azzaron has access and visibility to the network.
5.2.3.    Assistance configuring connections to the Subscription Services.
5.2.4.    Troubleshooting client-side experience issues.
5.2.5.    Troubleshooting client-side printing issues.
5.2.6.    Installing and updating included and custom software applications.
5.2.7.    Troubleshooting included and custom software applications, including escalation when necessary.
5.2.8.    Troubleshooting and advisement of security issues.
5.2.9.    Installation and configuration of local software, if necessary.
5.2.10.    Restoration of backup files and/or email.
5.3.    Remote Helpdesk coverage does not include:
5.3.1.    The cost of any parts, equipment, or shipping charge of any kind.
5.3.2.    The cost of any Software, Licensing, or Software Renewal or Upgrade Fees of any kind not included in the Subscription Services.
5.3.3.    The cost of any 3rd Party Vendor or Manufacturer Support or Incident Fees of any kind.
5.3.4.    The cost to bring Client’s environment up to minimum standards required for Services.
5.3.5.    Failure due to acts of God, building modifications, power failures or other adverse environmental conditions or factors.
5.3.6.    Service and repair made necessary by the alteration or modification of equipment other than that authorized by Azzaron, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than Azzaron.
5.3.7.    Support of 3rd Party Vendor provided components.
5.3.8.    Maintenance of Applications software packages, whether acquired from Azzaron or any other source unless as specified in the Addendum.
5.3.9.    Programming (modification of software code).
5.3.10.    Onsite Training Services.
5.4.    Azzaron’s Service Level Agreement (SLA) under the Subscription Services is defined in Appendix B.

6.    SUITABILITY OF EXISTING ENVIRONMENTS.
6.1.    In order for Client’s endpoints to be supported by Azzaron under this Agreement:
6.1.1.    All servers with Microsoft Windows Operating Systems must be running a non-end-of-life version of Windows Server, and have security patches set to auto install or must be on a maintenance plan.
6.1.2.    All Desktop PC’s and Notebooks/Laptops with Microsoft Windows Operating Systems must be running a non-end-of-life version Windows Desktop, and have security patches set to auto install or must be on a maintenance plan.
6.1.3.    All Server and Desktop Software must be Genuine, Licensed and Vendor-Supported.
6.1.4.    The environment must have a currently licensed, up-to-date and Vendor-Supported Server-based Antivirus solution protecting all endpoints.
6.1.5.    The environment must have a currently licensed, Vendor-Supported Hardware Firewall between the Internal Network and the Internet.
6.1.6.    All Wireless data traffic in the environment must be securely encrypted.

7.    CLIENT DATA.
7.1.    All proprietary data, the Client Data, belongs to Client, and Azzaron makes no claim to any right of ownership with regard to it.
7.2.    Azzaron agrees to keep the Client Data confidential.
7.3.    Azzaron agrees to use the Client Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, Azzaron:
7.3.1.    May observe and report back to Client on Client’s usage of these Services, and make recommendations for improved usage of these Services;
7.3.2.    May identify trends and publish reports on its findings provided the reports include data aggregated from more than one Client site and do not identify Client; and,
7.3.3.    Must ensure that the data center containing the Client Data meets the following physical and electronic security requirements: (i) single point of entry, (ii) main access monitored with additional access for emergency purposes only, (iii) surveillance cameras in facility, (iv) access validation with identify check, (v) access only to person on Azzaron approved access list, as may be updated from time to time by Client,
7.4.    Azzaron must comply with the principles of the EUData Protection Directive 95/46 and the Telecoms Data Protection Directive as amended (“the Directives”) and any successor legislation, in relation to any “personal data” received by or originating from Client and Client’s clients to the extent that the Directives apply to “data processors.”
7.5.    Upon termination of this Agreement, Azzaron will return all Client Data to the Client in a secure and compliant manner. Azzaron will not retain Client Data unless required by law. Client is responsible for the cost of securely transporting returned data.

8.    DATACENTER/HOSTED INFRASTRUCTURE WARRANTIES.
8.1.    Azzaron warrants that: (i) the Services will function substantially as described in this Agreement; and (ii) Azzaron owns or otherwise has the right to provide the Services to Client under this Agreement. The remedies set out in this Agreement are Client’s exclusive remedies for breach of either warranty.
8.2.    If the Services do not function substantially in accordance with this Agreement, Azzaron must, at its option, either (i) modify the Cloud Services to provide equivalent functionality; or (ii) provide an alternative solution that will reasonably meet Client’s requirements. If neither of these options is commercially feasible, either party may terminate the relevant Order Form under this Agreement. In the event of a cancellation due to Azzaron’s inability to provide Services as agreed, Azzaron shall refund to Client all fees pre-paid to Azzaron under the relevant Order Form for unused Services.
8.3.    Remedies available in section 8.2 are not applicable in the event of:
8.3.1.    Client utilizing a version of the Services that has passed its end-of-life date (see Section 4.5); or,
8.3.2.    Problems in the Services caused by any third party software or hardware, by accidental damage or by other matters beyond Azzaron’s reasonable control.
8.4.    Azzaron maintains an internal Disaster Recovery Policy for client data in the event of a datacenter crisis.
8.5.    Azzaron will inform the Client within 48 hours of any known physical or electronic breach of security in the system, along with affected and/or compromised systems and datasets.

9.    CONFIDENTIALITY.
9.1.    The Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of Azzaron, and Client agrees to use reasonable care to prevent other parties from learning of these trade secrets.  Client must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, Documentation, and Work Product.
9.2.    The Client Data may include valuable trade secrets that are the sole property of Client. Azzaron shall take reasonable care to prevent other parties from learning of these trade secrets.
9.3.    Sections 9.1 and 9.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
9.4.    Breach of confidentiality or disclosure of trade secrets will be subject to suspension or termination of the Subscription Services under this Agreement (Section 12).

10.    TERM OF AGREEMENT.
The term of this Agreement will commence on the date Client signs an Order Form for Subscription and ends when Azzaron no longer is obliged to provide Client with Subscription Services or Professional Services under any Order Forms. 

11.    LATE PAYMENTS.
11.1.    Amounts which have not been paid within 30 days of the billing due date on a Client’s invoice will be subject to a late payment charge of 1.0% per month calculated daily and payable monthly on the amounts outstanding from the time such amounts become due until payment is received by Azzaron.
11.2.    If Client has failed to pay amounts due or any interest thereon, then Azzaron may, in its sole discretion, in addition to seeking collection of amounts owed by use or other rights or remedies at law or under this Agreement (a) deny access to or use of the Cloud Services or the performance of any of its obligations under this Agreement until such failure is remedied, or (b) terminate this Agreement.
11.3.    Client shall bear all of Azzaron’s costs of collection of overdue fees, including reasonable attorneys’ fees.

12.    TERMINATION AND SUSPENSION.
12.1.    The rights and obligations designated under a particular Order Form may be terminated by either party if the other party breaches any material term of the Order Form (including a material term of this Agreement insofar as it applies to the Order Form) and the breach is not cured within 30 days of written notice to the breaching party. Client’s breach of Section 2 of this Agreement shall be considered a material breach.
12.2.    In the event Client has committed an act or omission which triggers Azzaron’s ability to terminate an Order Form, Azzaron, at its sole discretion, may suspend the provision of Cloud Services to Client.
12.3.    If Azzaron terminates an Order Form because of non- or untimely payment per the terms of this Agreement, all such unpaid fees for Services rendered during the Term immediately become due and payable.
12.4.    Upon termination of Client’s Service, Azzaron shall provide Client with all Client Data once Client complies with Section 12.3. Client Data will be returned pursuant to Section 7 within five business days.
12.5.    The Client may terminate the Order Form for any reason with 30 days advanced written notification.

13.    SURVIVABILITY.
13.1.    Azzaron may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Client.  Client may not withhold such consent in the case of an assignment by Azzaron of its rights and obligations to an entity that has acquired all, or substantially all of Azzaron’s assets, or to an assignment that is part of a genuine corporate restructure.
13.2.    Client may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Azzaron.  Azzaron may not withhold such consent in the case of an assignment by Client of its rights and obligations to an entity that has acquired all, or substantially all of Client’s assets, or to an assignment that is part of a genuine corporate restructure.
13.3.    Any assignment in breach of this Section is void.

14.    WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES, WORK PRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND AZZARON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AZZARON DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
15.    LIMITATION OF LIABILITY.
AZZARON SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE AZZARON HAS BEEN INFORMED OF THIS POSSIBILITY. CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE CLOUD SERVICES NECESSARY TO ACHIEVE CLIENT’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR WORK PRODUCT. AZZARON’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CLIENT TO AZZARON UNDER SUCH RELEVANT ORDER FORM DURING THE 24 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN AZZARON AND CLIENT AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO AZZARON. IN ADDITION, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT BY CLIENT OF AZZARON’S INTELLECTUAL PROPERTY RIGHTS, OR ANY BREACH OF THIS AGREEMENT, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.

16.    INDEMNIFICATION BY AZZARON.
16.1.    Azzaron shall indemnify and hold harmless Client, its affiliates, directors and employees from any damages awarded against Client (including, without limitation, reasonable costs and legal fees incurred by Client) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services, Documentation or Work Product by Client infringes any copyright, trade secret or United States patent, (“Legal Action”). Azzaron must also assume the defense of the Legal Action.
16.2.    However, Azzaron shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Services, or Work Product with software or products not supplied, or approved in writing by Azzaron; (ii) any repair, adjustment, modification or alteration to the Services by Client or any third party, unless approved in writing by Azzaron.
16.3.    Client must give written notice to Azzaron of any pending Legal Action no later than 30 days after first receiving notice of a Legal Action, and must give copies to Azzaron of all communications, notices, and/or other actions relating to the Legal Action.  Client must give Azzaron the sole control for the defense of any Legal Action, must act in accordance with the reasonable instructions of Azzaron and must give Azzaron such assistance as Azzaron reasonably requests to defend or settle such claim.  Azzaron shall conduct its defense at all times in a manner that is not adverse to Client’s interests.  Client may employ its own counsel to assist it with respect to any such claim.  Client must bear all costs of engaging its own counsel unless engagement of counsel is necessary because of a conflict of interest with Azzaron or its counsel, or because Azzaron fails to assume control of the defense.  Client must not settle or compromise any Legal Action without Azzaron’s express written consent.  Azzaron shall be relieved of its indemnification obligation if Client materially fails to comply with this section 12 of this Agreement.

17.    INDEMNIFICATION BY CLIENT.
17.1.    Client must indemnify and hold harmless Azzaron, its affiliates, directors, and employees from any damages finally awarded against Azzaron(including, without limitation, reasonable costs and legal fees incurred by Client) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Client Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Client Data (“Legal Claim”).
17.2.    Azzaron shall give written notice to Client of any pending Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and must give copies to Client of all communications, notices and/or other actions relating to the Legal Claim.

18.    DISPUTE RESOLUTION.
18.1.    First Level; Good Faith Negotiations. Prior to the institution of alternative dispute resolution, Azzaron and Customer agree to discuss and attempt in good faith for a reasonable time to negotiate and resolve between themselves any dispute.
18.2.    Second Level; Binding Arbitration.
18.2.1.    If any dispute remains unresolved through negotiations between the parties in accordance with section 18.1, such dispute shall be submitted to arbitration in accordance with this section.
18.2.2.    Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by single-arbitrator arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
18.2.3.    All arbitration awards shall be binding and not appealable except as otherwise required by the United States Arbitration Act.  Any court with jurisdiction may enter judgment upon the award of the arbitrator, and the parties agree to be bound by such award.  Any such arbitration shall be before a neutral arbitrator who is an attorney actively engaged in the practice of business law for at least ten (10) years or a retired judge of a state appellate court or a federal district or appellate court.
18.2.4.    Such arbitration shall be conducted in Phoenix, Arizona.
18.2.5.    The arbitrator shall award costs and expenses of the arbitration proceeding (including, without limitation, reasonable attorneys' fees and costs) to the party in whose favor the arbitrator rules.  Any money judgments made hereunder shall be promptly paid in U.S. Dollars.  Any costs, fees, or taxes incident to enforcing any arbitration award shall be charged against the party resisting such enforcement.
18.3.    AZZARON AND CUSTOMER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
18.4.    Notwithstanding the foregoing, either party shall be entitled to institute suit in any federal or state court sitting in Maricopa County, Arizona seeking injunctive relief for a breach or threatened breach by the other party of any provision hereof.

19.    MISCELLANEOUS.
19.1.    This Agreement together with the Order Form represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral.  If there is a conflict between the Agreement and an Order Form, the Order Form will prevail.
19.2.    This Agreement may be superseded by a HIPAA Business Associates Agreement.
19.3.    This Agreement may not be changed or any part waived except in writing by the parties.
19.4.    This Agreement will be governed by the laws of Arizona (excluding its choice of law rules). 
19.5.    Client must not export or re-export, directly or indirectly, any Services, Documentation or confidential information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.
19.6.    The Subscription Services and Documentation provided to the U.S. Government are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable.
19.7.    This Agreement may be executed in one or more counterparts each of which shall be an original and all of which, taken together, shall constitute one and the same instrument. Executed facsimile and pdf copies of this Agreement shall be deemed effective to the same extent as ink-signed originals.
 
 
APPENDIX A:
DEFINITIONS

Client Data: any electronic information stored in the Software, whether in file, database, or email form expressly created by, or belonging to, the end user.
Documentation: user information provided electronically by Azzaron for use with the Cloud Subscription Services, as periodically updated.
Endpoint: any device used to access the Subscription Services, including but not limited to desktop computers and mobile devices.
Infrastructural Services: the components making up a physical, virtual, or hybrid network located at Azzaron’s facility.
Order Form: a document provided by Azzaron and signed by Client that describes terms of Azzaron’s service offering.
Professional Services: the training, consulting, development and other professional services identified on a Statement of Work, but does not include the Cloud Services.
Remote Helpdesk: tech-based support provided through remote access to an Endpoint.
Statement of Work: a document provided by Azzaron and signed by Client that describes the Professional Services to be provided by Azzaron to Client.
Software: the software whose functionality is described in the Order Form.
Subscription Services: the hosted Client experience solutions identified in an Order Form, and any modifications periodically made by Azzaron.
Term: the period of time during which Azzaron is required to provide Client with the Services.
Work Product: object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by Azzaron in providing the Professional Services to Client.

For additional updated technical terms, refer to http://support.azzaron.com/glossary.

 

APPENDIX B:
SLA
 
 
 
APPENDIX C:
FEE SCHEDULE
 
BUSINESS CRITICAL SUPPORT: Includes 24-hour emergency response for all Priority 1 and Priority 2 service-affecting issues.
BUSINESS STANDARD SUPPORT: Includes business-hours support for all issues.  “Business hours” are defined as 8 AM through 5 PM PST.  Standard support outside of business hours is subject to published tech hourly rates and is billed in one-quarter hour increments.
ON-PREMISE SUPPORT: Includes scheduled business-hours support for users in supported zones only.  All on-premise support is subject to a two-hour minimum billing at published tech hourly rates and is billed in one-quarter hour increments plus a one-way trip charge.
TECH RATES (VALID THROUGH 12/31/2016):
Remote tech rate (after-hours): $140
On-premise tech rate: $140
On-premise tech rate (after-hours): $210
Trip charges: per area in supported zones
Last modified on Saturday, 18 June 2016 18:38