Unless otherwise provided in this SOW, remediation services will be provided in accordance with the recommended practices of the managed services industry. Client understands and agrees that remediation services are not intended to be, and will not be, a warranty or guarantee of the functionality of any particular device, or a service plan for the repair of any particular managed hardware or software.
Monitoring Services; Alert Services
Unless otherwise indicated in this SOW, all monitoring and alert-type services are limited to detection and notification functionalities only. Monitoring levels will be set by PlanX, and Client shall not modify these levels without PlanX’s prior written consent.
Modification of System
The Services rely upon physical and virtual configurations of the System as known to, and (if applicable) determined by, PlanX. Changes made to the System without our prior authorization or knowledge may have a substantial, negative impact on the provision and effectiveness of the Services. Client agrees to refrain from moving, modifying, or otherwise altering any portion of the System without our prior knowledge and consent. For the purposes of illustration, Client shall not add or remove hardware from the System, install applications on the System, or modify the configuration or log files of the System without PlanX’s prior knowledge and, on each occasion, written consent.
Anti-Virus; Anti-Malware
PlanX’s anti-virus / anti-malware solution will generally protect the Client’s system from becoming infected with new viruses and malware (“Viruses”); however, Viruses that exist on the Client’s system at the time that the security solution is implemented may not be capable of being removed without additional services, for which a charge may be incurred.
You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain Viruses or malware, such as ransomware or rootkits, that were previously unknown to the manufacturers of the software solution, and/or which are purposely or intentionally downloaded or installed onto your System. You are strongly advised to refrain from downloading files that are sent by unknown users, and/or users or files whose origination cannot be verified. PlanX does not warrant or guarantee that all Viruses and malware will be capable of being avoided or removed, or that all forms of Viruses and malware will be timely detected or removed, or that any data corrupted or encrypted by Viruses or malware will be recoverable.
In order to improve security awareness, you agree that PlanX or its designated third party affiliate may transfer information about the results of processed files, information used for URL reputation determination, security risk tracking, and statistics for protection against spam and malware. Any information obtained in this manner does not and will not contain any personal or confidential information.
Declination of Backup / Recovery Service
You have declined PlanX’s data backup and recovery service; accordingly, you understand and agree that PlanX may be incapable of recovering your data if your data is lost, corrupted, or damaged for any reason. Only if requested to do so by you, PlanX may attempt to recover lost, corrupted, or damaged data; however, PlanX does not warrant or guarantee that its efforts will be successful. Regardless of the outcome, PlanX’s recovery services will be billed to you at PlanX’s then-current hourly rates.
Hosted Exchange / Email
Client is solely responsible for the security, confidentiality and integrity of all email, and the content of all email, received, transmitted or stored through the hosted email service (“Hosted Email”).
Client shall not upload, post, transmit or distribute (or permit any of its authorized users of the Hosted Email to upload, post, transmit or distribute) any prohibited content, which is generally content that (i) is obscene, illegal, or intended to advocate or induce the violation of any law, rule or regulation, or (ii) violates the intellectual property rights or privacy rights of any third party, or (iii) mischaracterizes you, and/or is intended to create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication, or (iv) interferes or disrupts the services provided by PlanX or the services of any third party, or (v) contains Viruses, trojan horses or any other malicious code or programs.
In addition, Client shall not use the Hosted Email for the purpose of sending unsolicited commercial electronic messages (“SPAM”) in violation of any federal or state law.
PlanX reserves the right, but not the obligation, to suspend Client’s access to the Hosted Email and/or all transactions occurring under Client’s Hosted Email account if PlanX believes, in its discretion, that Client’s email account is being used in an improper or illegal manner.
SPAM / Junk Mail Filtering
PlanX’s service provides email scanning for incoming unsolicited commercial email. Using proprietary algorithms and other technologies, the service scans incoming email for designated keywords, attachments and known blacklisted sites, and filters the email accordingly. From time to time the service may filter email that is not SPAM or junk mail, or may block email from legitimate sources. Client is advised to periodically search the filtered email folder to ensure that relevant emails are not being filtered improperly, and will notify PlanX in the event that the SPAM filter settings require adjustment.
VoiP / Phone System
911 Dialing / Emergency Dialing – Limitations
The VoiP Service (“VoiP Service”) does not support traditional 911 or E911 access to emergency services in all locations. The 911 dialing feature of the VoiP Service is not automatic; Client must take affirmative steps to register the address where the VoiP Service will be used in order to activate the 911 Dialing feature. Client understands that Client must inform any users of the VoiP Service of the non-availability of traditional 911 or E911.
When a VoiP calling device is registered in a particular location, it cannot be moved without re-registering the device in the new location. Client agrees that it will not move any VoiP calling device without PlanX’s written consent. Client shall hold PlanX harmless for any and all claims or causes of action arising from or related to Client’s inability to use traditional 911 or E911 services.
When an emergency call is made, one or more third parties use the address of Client’s registered location to determine the nearest emergency response location, and then the call is forwarded to a general number at that location. When the emergency location receives Client’s call, the operator will not have Client’s address and may not have Client’s phone number. Client understands and agrees that users of the VoiP System must provide their address and phone number in order to get help. Client hereby authorizes PlanX to disclose Client’s name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to Client’s registered location.
Client understands and agrees that 911 dialing does not and will not function in the event of a power failure or disruption. Similarly, the hosted VoiP Services will not operate (i) during service outages or suspensions or terminations of service by Client’s broadband provider or ISP, or (ii) during periods of time in which Client’s ISP or broadband provider blocks the ports over which the VoiP Services are provided. Client further understands and agrees that 911 Dialing will not function if Client changes its telephone number, or if Client adds or ports new telephone numbers to Client’s account, unless and until Client successfully register its location of use for each changed, newly added or newly ported telephone number.
Patch Management
PlanX shall keep all managed equipment and software current with critical patches and updates (“Patches”) as such Patches are released generally by the manufacturers of the applicable hardware or software. Patches and updates are developed by third party vendors and, on rare occasions, may make the System, or portions of the System, unstable, or cause the managed equipment or software to fail to operate properly even when the Patches are installed correctly. PlanX shall not be responsible for any downtime or losses arising from or related to the installation or use of any Patch. PlanX reserves the right, but not the obligation, to refrain from installing a Patch if PlanX is aware of technical problems caused by a Patch, or believes that a Patch may render the System, or any portion of the System, unstable.
Backup (BDR) Services
PlanX’s backup and disaster recovery (“BDR”) solution uses industry-recognized products and software to help ensure the security and integrity of Client’s data. However, Client understands and agrees that all data transmitted over the Internet may be subject to malware and computer contaminants such as viruses, worms and trojan horses, as well as attempts by unauthorized users, such as hackers, to access or damage Client’s data. Neither PlanX nor its designated affiliates will be responsible for the outcome or results of such activities. Data backup and recovery time will depend on the speed and reliability of Client’s Internet connection.
BDR services require a reliable, always-connected Internet solution. Internet and telecommunications outages will prevent the BDR services from operating correctly. In addition, all computer hardware is prone to failure due to equipment malfunction, telecommunication-related issues, etc., for which PlanX shall be held harmless. Client is strongly advised to use data verification functionality (if available) to ensure the integrity of Client’s stored data. Client is further advised to take all verification errors seriously, and agrees to contact PlanX immediately if verification errors are repetitive and/or cannot be remedied.
Due to technology limitations, all computer hardware, including communications equipment, network servers and related equipment, has an error transaction rate that can be minimized, but not eliminated. As such, Client understands and agrees that any data sent to or stored by PlanX may become corrupted or lost due to communication or hardware-related failures. PlanX cannot and does not warrant that such data corruption or loss will be avoided, and Client agrees that PlanX shall be held harmless if such data corruption or loss occurs. Client is strongly advised to keep a local backup of all of stored data to mitigate against the unintentional loss of data.
Unless otherwise expressly stated in this SOW, BDR services do not permit archiving or retrieval of prior document or file versions; only the latest version of a stored document or file is recoverable.
Procurement
Equipment and software procured by PlanX on Client’s behalf (“Procured Equipment”) may be covered by one or more manufacturer warranties, which will be passed through to Client to the greatest extent possible. By procuring equipment or software for Client, PlanX does not make any warranties or representations regarding the quality, integrity or usefulness of the Procured Equipment. Certain equipment or software, once purchased, may not be returnable or, in certain cases, may be subject to third party return policies and/or re-stocking fees, all of which shall be Client’s responsibility in the event that a return of the Procured Equipment is requested.
PlanX is not a warranty service or repair center. PlanX will facilitate the return or warranty repair of Procured Equipment; however, Client understands and agrees that the return or warranty repair of Procured Equipment is governed by the terms of the warranties (if any) governing the applicable Procured Equipment, for which PlanX shall be held harmless.
Quarterly Business Review; IT Strategic Planning
Suggestions and advice rendered to Client are provided in accordance with relevant industry practices, based on Client’s specific needs. By suggesting a particular service or solution, PlanX is not endorsing any particular manufacturer or service provider. PlanX is not a warranty service or repair center, and does not warrant or guarantee the performance of any third party service or solution.
Virtual CTO or CIO Services
The advice and suggestions provided by the VCIO will be for Client’s informational and/or educational purposes only. The VCIO will not hold an actual director or officer position with Client, and the VCIO will neither hold nor maintain any fiduciary relationship or position with Client. Under no circumstances shall Client list or place the VCIO on Client’s corporate records or accounts. At all times the VCIO will be an independent contractor of Client.
Diagnostic / Auditing Services
Any diagnostic or auditing services performed by PlanX may require PlanX to install a small amount of code (“Diagnostic Code”) on one or more of the devices attached to the System. The Diagnostic Code is deleted in its entirety after the testing process concludes. Although our diagnostic tools may have access to—and report on the existence of—personal information and/or personal data on the diagnosed System, PlanX does not review or copy such information at any time during the testing process. No files will be erased, modified, opened, reviewed or copied at any time during the testing process. The Diagnostic Code will not install or create any disabling device, or any backdoor or hidden entryway into the System. The results of the diagnostic testing will be kept confidential by PlanX.
You grant PlanX permission to access the System for the purpose of conducting the diagnostic testing, and agree to hold PlanX harmless from and against any and all incidents or damages that may occur during or as a result of the testing process, regardless of the cause of such damages including but not limited to data loss due to events beyond PlanX’s reasonable control, network or communication outages, and deficiencies or errors in any of hardware or equipment that may interrupt or terminate the diagnostic testing process.
The testing process is for diagnostic purposes only. The process is not intended, and will not be used, to correct any problem or error in the System. PlanX does not warrant or represent that the testing process will result in any particular outcome, or that any particular issue, hardware or software configuration will be correctly detected or identified.
Sample Policies, Procedures.
From time to time, PlanX may provide Client with sample (i.e., template) policies and procedures for use in connection with Client’s business (“Sample Policies”). The Sample Policies are for Client’s informational use only, and do not constitute or comprise legal or professional advice. The Sample Policies are not intended to be a substitute for the advice of competent counsel. Client should seek the advice of competent legal counsel prior to using the Sample Policies, in part or in whole, in any transaction. PlanX does not warrant or guarantee that the Sample Policies are complete, accurate, or suitable for Client’s specific needs, or that Client will reduce or avoid liability by utilizing the Sample Policies in its business operations.
Penetration Testing; Vulnerability Assessment
Client understands and agrees that security devices, alarms or other security measures, both physical and virtual, may be tripped or activated during the penetration testing process, despite PlanX’s efforts to avoid such occurrences. Client shall be responsible for notifying any monitoring company and all law enforcement authorities of the potential for “false alarms” due to the provision of the penetration testing services, and shall take all steps necessary to ensure that false alarms are not reported or treated as “real alarms” or credible threats against any person, place or property. Some alarms and advanced security measures, when activated, may cause the partial or complete shutdown of the Client’s System, causing substantial downtime and/or delay to Client’s business activities. PlanX shall not be responsible for, and shall be held harmless and indemnified by Client against, any claims, costs, fees or expenses incurred by Client that arise or result from (i) any response to the penetration testing services by any monitoring company or law enforcement authorities, or (ii) the partial or complete shutdown of Client’s System by any alarm or security monitoring device.
Client shall use all PlanX-hosted equipment and hardware (collectively, “Infrastructure”) for Client’s internal business purposes only. Client shall not sublease, sublicense, rent or otherwise make the Infrastructure available to any third party without PlanX’s prior written consent. Client agrees to refrain from using the Infrastructure in a manner that unreasonably or materially interferes with PlanX’s other hosted equipment or hardware, or in a manner that disrupts or which is likely to disrupt the services that PlanX provides to its other clientele. Notwithstanding any provision to the contrary, PlanX reserves the right to throttle or suspend Client’s access and/or use of the Infrastructure if PlanX believes, in its sole but reasonable judgment, that Client’s use of the Infrastructure is violating, or is likely to violate, the foregoing terms or any other provision on the Agreement.
Data Replication
If Client purchases any services that involve data replication at a geographically diverse site, then the following applies to Client’s use of that service: The rate by which the data at the primary site can be transferred to the secondary site will vary depending on the amount and type of data, constraints inherent in Client Hosted System, and fluctuations in bandwidth availability. Therefore, at any given time, the secondary site may not be completely up to date. In the event of a failover to the secondary site, the data that has not yet completed the transfer from the primary site will be lost. PlanX may provide Client with some guidelines on latency times based on its understanding of Client’s data and system constraints, but these guidelines are not guaranteed.
Domain Name Services
If Client registers, renews or transfers a domain name through PlanX, PlanX will submit the request to its domain name services provider (the “Registrar”) on Client’s behalf. PlanX’s sole responsibility is to submit the request to the Registrar. PlanX is not responsible for any errors, omissions or failures of the Registrar. Client’s use of domain name services is subject to the applicable legal terms of the Registrar. Client is responsible for closing any account with any prior reseller of or registrar for the requested domain name, and Client is responsible for responding to any inquiries sent to Client by the Registrar.
Unsupported Configuration Elements Or Services
If Client requests a configuration element (hardware or software) or hosting service in a manner that is not customary at PlanX, or that is in “end of life” or “end of support” status, PlanX may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the service description (an “Unsupported Service”). PlanX makes no representation or warranty whatsoever regarding any Unsupported Service, and Client agrees that PlanX will not be liable to Client for any loss or damage arising from the provision of an Unsupported Service. Deployment and service level guarantees shall not apply to any Unsupported Service.
IP Addresses
Any IP addresses provided to Client by PlanX during the term of the Agreement are managed by PlanX and PlanX will retain these IP addresses after termination of the agreement, meaning that they may not be transferred or utilized by Client after termination of the Agreement.
Hosting Services
Client agrees that it is responsible for the actions and behaviors of its users of the Services. In addition, Client agrees that neither it, nor any of its employees or designated representatives, will use the Services in a manner that violates the laws, regulations, ordinances or other such requirements of any jurisdiction. Client warrants and represents that all hosted applications will be properly licensed, and that all such licenses shall be maintained by Client throughout the entire term of this SOW.
In addition, Client agrees that neither it, nor any of its employees or designated representatives, will: transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be “spamming” and carry out any “denial of service” attacks on any other website or Internet service; infringe on any copyright, trademark, patent, trade secret, or other proprietary rights of any third party; collect, attempt to collect, publicize, or otherwise disclose personally identifiable information of any person or entity without their express consent (which may be through the person or entity’s registration and/or subscription to Client’s services, in which case Client must provide a privacy policy which discloses any and all uses of information that you collect) or as otherwise required by law; or, undertake any action which is harmful or potentially harmful to PlanX or its infrastructure.
Client is solely responsible for ensuring that its login information is utilized only by Client and Client’s authorized users and agents. Client’s responsibility includes ensuring the secrecy and strength of user identifications and passwords. PlanX shall have no liability resulting from the unauthorized use of Client’s login information. If login information is lost, stolen, or used by unauthorized parties or if Client believes that any hosted applications or hosted data has been accessed by unauthorized parties, it is Client’s responsibility to notify PlanX immediately to request the login information be reset or unauthorized access otherwise be prevented. PlanX will use commercially reasonable efforts to implement such requests as soon as practicable after receipt of notice.
SPLA Licensing
As part of the Services, PlanX will acquire certain licenses from Microsoft under a services provider license agreement (“SPLA”). The SPLA incorporates the terms and conditions of another Microsoft document, called the Service Provider Use Rights (or “SPUR”). PlanX’s licensing of Microsoft software, and Client’s use of such software, must always comply with the terms of the SPLA and SPUR. In the event that Microsoft modifies the terms of the SPLA or the SPUR, PlanX may be required, and will be permitted without prior notice to you, to modify the Services to comply with the modified terms of the SPLA or SPUR, as applicable.
Internet and Cellular Service
Client acknowledges that PlanX does not provide Internet or Cellular services. Client will not hold PlanX liable for loss of business, revenue, or damages as a result of Internet or cellular service outages, disruptions or gaps of service causing loss of business, revenue, or damages.