Version 2019 (07.01.2019)
This Schedule, together with the Proposal, Master Service Terms and all ancillary agreements thereto, and the CareServ AUP, set forth the terms that apply to the Internet hosting services (the “Internet Hosted Services,” which shall be a “Service” under the Master Service Terms) provided by CareServ Technologies, LLC (“CareServ”) to Customer. This Schedule contains terms that are in addition to, and not instead of, the Proposal, the Master Service Terms, the CareServ AUP, and all other agreements executed by and between the parties. Capitalized terms used but not otherwise defined herein shall have the same meanings given for such terms in the Master Service Terms.
- To the extent detailed in the Proposal, CareServ agrees to perform and provide to Customer and Customer does hereby accept the Internet Hosted Services consisting of (i) providing electronic access to a digital information processing, transmission, and storage system (“Server”) to store, host and, if indicated in the Proposal, backup the Customer Content and the associated website(s), electronic mail program(s), virtual private server(s), file size(s) and similar programs or sites (collectively, the "Site") described in the Proposal; (ii) making the Site available on demand by Customer to Customer’s end users via the Internet, as set forth herein; and (iii) providing technical support to the customer with respect thereto and as more particularly described in this Schedule. Except as may be otherwise agreed to by the parties in an addendum to this Schedule or the Proposal, the Internet Hosted Services do not include any e-commerce or transaction processing services.
- CareServ will implement reasonable and appropriate technical and organizational measures per the standards generally prevailing in the Internet hosting industry to help secure the Customer Content against accidental or unlawful loss, access, and disclosure and will maintain a disaster recovery plan in effect at all times during the term of the Agreement. The customer acknowledges, agrees, and understands that CareServ’s obligations, as set forth in this Schedule, (i) are CareServ’s only responsibility with respect to the security and handling of the Customer Content, except as otherwise required by applicable law or as otherwise may be agreed to by CareServ in writing; (ii) are in lieu of, and not in addition to, the confidentiality provisions of the Master Service Terms with respect to the Customer Content. The customer agrees that CareServ may transmit and disclose the Customer Content to third parties following the customer's directions.
Customer Responsibilities and Warranties
- The customer agrees to comply with the applicable hardware, software, and other technical and pre-setup requirements for the customer's use of the Internet Hosted Services as established by CareServ from time to time, and the customer agrees to use the Internet Hosted Services and any CareServ Materials in accordance with CareServ’s then-current policies and procedures (which may be in written or electronic form). The customer shall not resell the Internet Hosted Services. The customer acknowledges that the customer's use of the Hosted Services will require Internet access, which CareServ shall provide to the customer as part of the Internet Hosted Services hereunder according to the terms of the Proposal.
- Except as otherwise expressly provided in the Agreement, as between the parties, the customer shall be solely responsible for providing, updating, uploading, and maintaining the Site and all Customer Content. Customers will manage, renew, create, delete, edit, and otherwise control the Customer Content. In addition to all of the customer's covenants, representations, and warranties set forth in the Master Service Terms, Customer warrants and represents that (i) Customer’s Site and Customer Content do not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (ii) Customer owns the Customer Content and all proprietary and intellectual property rights therein or has express written authorization from the owner to copy, use and display the Customer Content on and within the Site. The customer acknowledges, understands, and agrees that the representations and warranties made by the customer in Section 2(b) are automatically reaffirmed each time the customer submits Customer Content to CareServ.
- Without limiting the provisions of the Master Service Terms, the customer agrees to comply with the CareServ DMCA Policies and Procedures.
- Customer (i) shall use its best efforts to eliminate all viruses and destructive elements found in or furnished with any Customer Content; (ii) will notify CareServ as to the existence of any such virus and harmful component immediately upon discovery thereof; and (iii) hereby expressly grants CareServ the right to take any steps CareServ deems necessary to eliminate the virus or destructive element and to be reimbursed by the customer for such costs relating to any such commercially reasonable steps.
License Grants and Restrictions
- During the term of the Agreement and as long as CareServ provides the customer with the Internet Hosted Services pursuant to the Proposal, the Customer grants to CareServ and its suppliers a non-exclusive, worldwide, and royalty-free license to copy, display, use, and transmit on and via the Server and the Internet the Customer Content, solely for the benefit of the customer and in accordance with CareServ's performance and/or enforcement of this Schedule and the Master Service Terms. As between CareServ and Customer, Customer retains title and ownership in and to all worldwide intellectual property rights in and to the Customer Content and any modifications, adaptations, derivative works, and enhancements made thereto, but explicitly excluding any CareServ Materials and any names, logos, trademarks, Internet Hosted Services marks and other proprietary indicia of CareServ (collectively, the “Marks”) that may be included or embodied in the Customer Content.
- In addition to the restrictions of customer set forth in the Master Service Terms, except for creation, management, and use of the Customer Content by Customer on the Site as permitted hereunder during the term of the Agreement and as long as CareServ provides the customer with the Internet Hosted Services pursuant to the Proposal, Customer may not, at any time, use or exploit or authorize any third party to use or misuse, any Customer Content that embodies CareServ Materials or that was created or developed using the CareServ Materials. Customers may not use the Marks without CareServ's prior, written approval, including, without limitation, using the Marks (or any of them) to identify CareServ as the supplier or source of the Internet Hosted Services provided to the customer hereunder.
- CareServ's Service Availability representations, as outlined in the Master Service Terms, apply to the Services provided herein.
- CareServ’s exceptions from awarding Customer any Service Availability Service Credits, as outlined in the Master Service Terms, apply to the Services provided herein.
- THE SERVICE AVAILABILITY GUARANTY OUTLINED IN THIS SECTION SHALL APPLY ONLY TO THE Internet Hosted Services AND DOES NOT APPLY TO ANY OTHER SERVICE. THIS SECTION SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY CARESERV TO PROVIDE THE Internet Hosted Services AND ANY BREACH BY CARESERV OF THE SERVICE AVAILABILITY GUARANTEE, EACH AS SET FORTH HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY OTHER AGREEMENT BY AND BETWEEN CARESERV AND CUSTOMER, THE MAXIMUM AMOUNT OF SERVICE CREDITS CARESERV SHALL GRANT FOR THE Internet Hosted Services IN ANY ONE MONTH SHALL BE THE MONTHLY RECURRING CHARGES UNDER THE PROPOSAL APPLICABLE TO THE Internet Hosted Services.
- CareServ will provide the customer with technical assistance by email or other Internet-based communication, as disclosed by CareServ to the Customer from time to time, concerning the access and use of the Internet Hosted Services and the identification and reporting of problems or errors with the Internet Hosted Services. Careserv will respond within a reasonable period to the customer’s request placed during CareServ's regular operating hours of 7:00 a.m. to 7:00 p.m., Eastern Time, Monday through Friday, holidays excepted, unless otherwise stated in the Proposal.
- Unless CareServ provides applicable Managed Services to the customer according to a separate schedule, CareServ will provide "2nd Tier" support concerning access to the Site by the Customer's end users via the Services on the same terms as outlined in Section 5(a). In this regard, the customer shall be responsible for routine troubleshooting and intake of all issues and questions of end users related to the Site. The customer shall then make commercially reasonable efforts to address and to correct all problems of its end users. If, after making such reasonable efforts, the customer cannot correct an error or problem related solely to the Internet Hosted Services or CareServ Materials, the Customer shall notify CareServ, and CareServ shall assist the customer (not the end-user) in diagnosing and correcting such error or problem. Unless the customer has otherwise contracted with CareServ for such services as part of any Managed Services provided to the customer under the Agreement, in no event shall CareServ be required to provide support or maintenance services directly to an end user of the customer.
Termination of Hosting Agreement
- CareServ’s Rights. Without limiting CareServ’s rights under and the provisions set forth in the Master Service Terms, and notwithstanding anything in the Proposal to the contrary, the customer agrees and acknowledges that CareServ may suspend or terminate the Internet Hosted Services provided hereunder in the event of (i) any breach by the customer of any provision of the Agreement; (b) any failure of the customer to pay CareServ for the Internet Hosted Services provided to customer hereunder; and/or (c) the expiration or earlier termination of the Agreement or the Internet Hosted Services.
- Procedures. The customer acknowledges, understands, and agrees that, in addition to the provision of the Master Service Terms, within ten (10) days of the expiration or earlier termination of Internet Hosted Services, the Customer must notify CareServ whether to (i) disable customer's account and delete the Customer Content; or (ii) provide the customer with limited access to its account for a period of forty-five (45) days after the date of such expiration or termination (the "Retention Period") for the sole purpose of permitting the customer to retrieve the Customer Content, in which case customer will reimburse CareServ for all applicable costs; provided, however, that the provisions of subsection (ii) shall not apply unless the customer has paid all amounts due to CareServ through the effective date of termination no later than ten (10) days after such date. If the customer does not provide CareServ with notice of its election according to subsections (i) or (ii), CareServ will retain the Customer Content per paragraph (ii). Following the expiration of the Retention Period, CareServ will disable the customer's account and delete the Customer Content. The customer agrees that, other than as described in this Section and notwithstanding any other term in the Agreement, CareServ has no obligation to continue to hold or return the Customer Content. The customer further agrees that CareServ has no liability whatsoever for the deletion of the Customer Content according to these terms.
- CUSTOMER AGREES AND ACKNOWLEDGES THAT CARESERV, ITS OWNERS, AFFILIATES, SUPPLIERS, AND VENDORS HAVE NOT MADE ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO THE CUSTOMER, CONCERNING THE SERVICES OR THE CARESERV MATERIALS, AND THAT CARESERV EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. IN NO EVENT WILL CARESERV, ITS AFFILIATES, SUPPLIERS, OR VENDORS BE LIABLE TO CUSTOMER OR ANY USERS UNDER THE AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, FOR ANY DAMAGES OR COSTS, WHETHER DIRECT OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY, INTERRUPTED OR DELAYED COMMUNICATIONS OR INACCURATE INPUT DAMAGES.
- All affiliates, suppliers, and vendors of CareServ are express third-party beneficiaries of the Agreement concerning the Internet Hosted Services provided hereunder and shall have all rights and remedies of CareServ under the Agreement concerning such Internet Hosted Services.
