These Service Terms & Conditions are by and between CacheNetworks, LLC dba CacheFly (“CacheFly”), an Illinois limited liability company, and the individual or entity purchasing Services from CacheFly (“Customer”) pursuant to one or more Orders. CacheFly and Customer may be collectively referred to as the “Parties” and, individually, as a “Party.”
BY CREATING AN ACCOUNT ON THE CACHEFLY WEBSITE, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 16.2 BELOW. IF CUSTOMER IS AN ENTITY, THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON SUCH ENTITY’S BEHALF REPRESENTS AND WARRANTS THAT HE OR SHE IS DULY AUTHORIZED TO ACT ON BEHALF OF AND LEGALLY BIND SUCH ENTITY.
“Affiliate” – any Person that, directly or indirectly, controls, is controlled by, or is under common control with, a specified Person.
“Agreement” – these Service Terms & Conditions, together with all Orders and Service Descriptions (as each such term is defined below).
“Commencement Date” – the date upon which CacheFly provisions an ordered Service, as set forth in the applicable Order.
“Control,” “controls” and “controlled,” each as used in the definition of “Affiliate” – the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise.
“Effective Date” – the date upon which this Agreement has been executed by both CacheFly and Customer.
“Malicious Code” – any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology.
“Person” – an individual or a partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency or political subdivision thereof, or other entity.
“Recurring Charges” – any recurring (whether monthly recurring, quarterly recurring, etc.) charges set forth in an Order (as defined in Section 2.1.1).
“CacheFly Network” – collectively, the fiber optic network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by CacheFly.
“CacheFly Website” – CacheFly’s website, published at https://www.cachefly.com or such other URL as CacheFly may specify from time to time.
“Service Description” means a supplemental Service Description setting forth the description, terms and conditions and Service Levels (if relevant) applicable to any Services to be provided under this Agreement, which Service Description is posted on the CacheFly Website.
“Service Level” – performance target for specific Services provided by CacheFly, as set forth in an applicable Service Description.
“Services” – the services ordered by Customer, as set forth in one or more Orders (as defined in Section 2.1.1).
“Support Ticketing System” – CacheFly’s system for tracking all support requests, and at CacheFly’s sole discretion, limited requests for purchasing Services.
“Term” – the period of time in which CacheFly provides Services to Customer, as set forth in the applicable Order.
Any and all Services to be provided by CacheFly under this Agreement shall be set forth in individual order forms (including sales order forms and orders placed via the CacheFly Website or CacheFly’s Support Ticketing System), each of which will: (i) describe the Services to be provided thereunder and related subject matter, including the fees to be charged therefor, the applicable Commencement Date and Term, and other relevant terms agreed upon by the Parties; and (ii) unless entered into by Customer via the CacheFly Website or CacheFly’s Support Ticketing System, be executed by authorized representatives of each Party (each such completed order form, as executed by both Parties or otherwise entered into by Customer via the CacheFly Website or CacheFly’s Support Ticketing System, an “Order”). Each Order is hereby incorporated into, and subject to, the terms of this Agreement.
Any change(s) to the nature or scope of any Services to be provided under any Order must be agreed in an amended Order signed by authorized representatives of both Parties. Any such amended Order shall be incorporated into this Agreement and subject to the terms and conditions of the applicable Service Description(s).
The initial Term of each Order shall begin on the Commencement Date for the Services ordered thereunder and shall remain in effect until the expiration of the initial Term specified in the Order. If the Order specifies a Term of longer than one (1) month, the Term of such Order will automatically renew for successive twelve (12) month terms unless either Party provides the other Party written notice of non-renewal at least ninety (90) days prior to the end of the then current Initial Term or renewal Term.
Each Order which contains a one (1) month Term shall automatically renew for consecutive one (1) month Terms, unless either Party provides the other Party at least thirty (30) days prior written notice of non-renewal.
If CacheFly is required to procure from a third party any of the Services listed on an Order, Customer hereby agrees that, unless otherwise expressly set forth on such Order or the applicable Service Description(s): (i) it shall be subject to, and shall comply with, any and all terms and conditions specified by such third party licensor, lessor or provider (“Third Party Provider”) as CacheFly may communicate to Customer from time to time or that are otherwise the subject of an agreement between Customer and such Third Party Provider (e.g., an end user license agreement pertaining to third party software provided by CacheFly); (ii) in the event of any conflict between such terms and conditions specific to the Services provided by such Third Party Provider, such third party terms and conditions shall control; and (iii) in conjunction with any cancellation by Customer of any Services from a Third Party Provider, Customer will be responsible for all termination charges imposed upon CacheFly by such Third Party Provider.
Each Service Description is hereby incorporated into, and subject to, the terms of this Agreement. Notwithstanding any provision to the contrary, no Service Level for any Services is applicable during any trial period with respect to Customer’s use of such Services or during initial configuration or implementation of such Services.
In the event of a failure by CacheFly to meet any Service Level, then subject to the terms and conditions of this Section 2.2 and the relevant Service Description, CacheFly shall issue to Customer a credit to be applied against future Fees (as defined in Section 4.1) payable by Customer in respect of the Services to which such Service Level pertains (each, a “Credit”); provided that under no circumstances shall the aggregate Credits in respect of any one (1) calendar month issued under any individual Service Description exceed the lesser of (i) the total Fees payable for the Services to which the Service Level(s) pertain(s) in such calendar month and (ii) such limitations set forth in such Service Description. In addition, Customer shall be entitled to only a single Credit should any one incident result in a failure of more than one Service Level under any Service Description, even if such incident causes the failure of multiple Service Levels under such Service Description. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to Taxes (as defined below), surcharges or similar charges.
To receive a Credit under any Service Description, Customer must (i) notify CacheFly within five (5) business days from the time Customer becomes eligible to receive such Credit, and (ii) provide CacheFly any such information regarding the event Customer believes gives rise to the entitlement to such Credit as CacheFly may request. Customer shall forfeit its right to receive the Credit if it fails to comply with these requirements.
UNLESS OTHERWISE EXPRESSLY PROVIDED IN THE APPLICABLE ORDER OR SERVICE DESCRIPTION(S) WITH RESPECT TO ANY SPECIFIED SERVICES, ANY CREDITS AWARDED BY CacheFly HEREUNDER SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY CacheFly TO MEET ANY SERVICE LEVEL AND ANY OTHER FAILURE, UNAVAILABILITY, DEGRADATION OR NONPERFORMANCE OF ANY SERVICES, INCLUDING, TO THE EXTENT APPLICABLE, ANY OUTAGES OR NETWORK CONGESTION.
Customer shall not receive any Credit under any Service Description to the extent CacheFly’s failure to meet the applicable Service Level is caused by or associated with any of the following, to the extent applicable, or such other exclusions as are set forth in such Service Description:
Except as expressly set forth in this Agreement, (i) the Services are provided only for Customer’s internal use, and only for the purposes set forth in this Agreement, and (ii) Customer may not market, sell, license, lease, provide or make available to a third party, or otherwise distribute, directly or indirectly, any Services. In the event this Agreement permits Customer to make available any Services to any third party (each, an “End User”), then Customer shall be responsible for each End User’s compliance with all applicable terms of this Agreement and, unless otherwise expressly set forth in this Agreement, Customer shall (a) require each such End User to enter into a written agreement no less protective of the rights of CacheFly and any applicable Third Party Providers than the terms set forth herein and in no event conflicting with any terms hereof (each, an “End User Agreement”), (b) enforce such End User’s compliance with the terms of such End User Agreement, (c) provide CacheFly notice of any violation of any End User Agreement that may adversely affect CacheFly or any Third Party Provider, or any of their respective rights hereunder, promptly after becoming aware of the same, (d) upon termination of any End User Agreement, ensure the End User has ceased use of all Services, and (e) provide CacheFly written notice of any claim, damages, or cause of action brought against Customer by any End User, and/or any subpoena served upon Customer or any officer or employee thereof, which relates to any Services or those portions of any End User Agreement relating to such Services.
CacheFly may suspend its provision to Customer of any or all Services under this Agreement, immediately upon notice to Customer (with e-mail notice to suffice) in the event: (i) Customer breaches the Acceptable Use Policy (as defined below) in any material respect and CacheFly determines in its reasonable discretion that there is potential harm to the CacheFly Network or any other technology, network or other property employed by CacheFly or other CacheFly customers; (ii) of repeated violations of the Acceptable Use Policy by Customer; (iii) Customer fails to cooperate with any inspection or audit as required under Section 3.8; (iv) CacheFly reasonably believes Customer has used or is using any Services hereunder in any manner that violates any applicable laws or regulations; (v) Customer breaches any of its other material obligations under this Agreement and fails to cure such breach (a) within five (5) days following written notice thereof, if Customer has failed to pay any amounts due under this Agreement, or (b) within thirty (30) days following written notice of any other breaches; or (vi) Customer repudiates any of its obligations under this Agreement before fully performing such obligations. CacheFly, in its reasonable discretion, may re-enable the affected provision of Services upon its satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future. In addition, CacheFly may modify or suspend the provision of any Services hereunder, if, in CacheFly’s reasonable discretion, such modification or suspension is necessary or advisable to (a) comply with any applicable law or regulation or a request of any governmental or law enforcement authority, (b) preserve the security of the relevant Services, (c) avoid or mitigate an imminent risk of harm or any other situation that may compromise the ability of CacheFly to deliver any Services, in accordance with the terms of this Agreement, to Customer or any other CacheFly customers, or (d) eliminate a hazardous condition, and CacheFly shall provide Customer notice of any such modification or suspension when, and to the extent, reasonably practicable.
CacheFly shall use commercially reasonable efforts to employ measures it deems appropriate to endeavor to mitigate security risks with respect to its Services, but does not guarantee that any Services, or the use thereof, will be secure.
In the event access to any Services requires any distinct user names and/or passwords (collectively, “Access Methods”), Customer shall ensure the confidentiality of such Access Methods and shall be responsible for all acts or omissions of all Persons using such Access Methods or otherwise allowed access by Customer to any Services, whether or not authorized by Customer.
In the event CacheFly provides Customer any Services hereunder, Customer shall at all times comply with and conform its use of the Services to CacheFly’s requirements for acceptable use of CacheFly’s Services, as set forth on the CacheFly Website, as such requirements may be amended by CacheFly from time to time (“Acceptable Use Policy”).
Customer agrees not to and not to permit any other Person to, without the prior written consent of CacheFly: (i) copy, modify, duplicate, decompile, reverse engineer, disassemble or otherwise reduce to a humanly perceivable form, make any attempt to discover the source code of, create derivative works based on, or translate CacheFly’s software (“Software”), or (ii) remove, obscure or alter in any manner any trademarks, trade names, copyright notices or other proprietary or confidentiality notices or designations, of any Person, contained or displayed in or on the Software. Unless otherwise set forth in any Order or Service Description, any license to any Software hereunder shall be revocable, non-exclusive, non-transferable (except as set forth therein) and non-sublicenseable, and shall be only for the object code (and not the source code) of such Software. Without limiting the generality of any other obligations of Customer under this Agreement, Customer shall reimburse CacheFly for any and all fees, costs and expenses incurred by CacheFly in connection with Customer’s violation of any portion of this Section.
As between CacheFly and Customer, Customer shall own, and shall be and remain wholly responsible for, all data, information and other content used, generated, uploaded, stored and/or transmitted in connection with any Services (“Customer Data”), including ensuring Customer has a valid right to use such Customer Data, ensuring the integrity and security of such Customer Data, backing up and retaining archival copies of all such Customer Data, restoring Customer Data in the event of any loss or impairment thereof, and ensuring such Customer Data complies with all applicable laws and regulations relating thereto (including those related to protection of Customer Data comprising personally identifiable information, the encryption of such Customer Data or the destruction thereof in connection with decommissioned hardware, as applicable). Customer represents and warrants that under no circumstances shall any Customer Data infringe, misappropriate, or otherwise violate any intellectual property, publicity or privacy rights of any Person.
Without limiting the generality of the foregoing, Customer (i) acknowledges that not all of CacheFly’s Services are designed to comply with the Health Insurance Portability and Privacy Act of 1996 (“HIPAA”), security standards, (ii) shall not, without the prior written consent of CacheFly and execution of CacheFly’s HIPAA Addendum to Service Terms & Conditions, use any Services to create, maintain, receive, transport or store any protected health information, as defined in 45 C.F.R. §164.501 (“PHI”), and (iii) shall use only those Services that have been designated by CacheFly as “HIPAA Compliant” to create, maintain, receive, transport or store any PHI hereunder.
Customer is responsible for ensuring that its use of any Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements.
Customer shall have, and maintain at its own expense throughout the term of this Agreement and for two (2) years following the effective date of expiration or termination hereof, insurance coverage acceptable to CacheFly, which shall at a minimum include the following:
Customer shall name CacheFly as an additional insured under each such policy, and each certificate of insurance shall provide that (a) the insurer waives any and all rights of subrogation against CacheFly, and (b) the insurer will provide written notice to both Customer and CacheFly at least thirty (30) days prior to any cancellation or material change in the insurance policy. Promptly following the Effective Date, Customer shall deliver to CacheFly certificates of insurance evidencing those policies in effect as of the Effective Date. Thereafter, Customer shall provide CacheFly updated certificates as all such policies become renewed or are modified, promptly following Customer’s receipt thereof.
Customer shall use commercially reasonable efforts not to upload any Malicious Code on any Services or other property of CacheFly, or to otherwise transmit any Malicious Code via the use of the CacheFly Network or any Services. In the event Customer does upload or otherwise introduces any Malicious Code into any Services or other property of CacheFly or otherwise transmits any Malicious Code via the use of the CacheFly Network or Services, Customer shall, at its sole cost and expense, promptly eliminate such Malicious Code and otherwise be responsible for and remedy any damages, losses or other adverse effects suffered by CacheFly, any licensors or licensees of CacheFly, or other Persons, resulting from such Malicious Code.
Except as expressly set forth in the Order, Customer shall be responsible for all hardware, networks, communication devices, and other technology necessary to enable Customer to access and/or use any Services provided hereunder.
Customer shall retain all books and records and other documentation related to its performance under this Agreement for the term of this Agreement and for a period of at least one (1) year following the effective date of expiration or termination hereof. During the term of this Agreement and during the one (1) year period subsequent to the effective date of expiration or termination hereof, CacheFly and/or its designee shall have the right, upon at least five (5) business days’ notice to Customer and during Customer’s normal business hours, to inspect and audit all books and records and other documentation, all systems and other technology, and all facilities, of Customer relevant to ascertaining Customer’s (and, if applicable, Customer’s End Users’ or other customers’) compliance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Customer shall cooperate in good faith with CacheFly and/or its designee to facilitate CacheFly’s exercise of its rights under this Section 3.8. In the event any inspection or audit reflects that Customer is not in compliance with the terms or conditions of this Agreement, Customer shall, at its sole cost and expense, promptly remedy such non-compliance.
In consideration of CacheFly’s provision of Services under this Agreement, Customer shall pay to CacheFly all such fees and expenses as are (i) specified in the applicable Order(s) or (ii) if Customer has placed the order via the CacheFly Website or CacheFly’s Support Ticketing System, CacheFly’s then current listed prices for such Services, as such Fees may be increased from time to time in accordance with the terms hereof (collectively, “Fees”).
Customer shall cooperate in good faith with any requests by CacheFly to assess Customer’s creditworthiness, including by providing to CacheFly financial documentation reasonably requested for such purposes.
All invoices must be paid in accordance with the terms set forth in the applicable Order and/or Service Description, without setoff or deduction of any kind, other than portions of the invoice which are subject to a good faith dispute in accordance with the terms of Section 4.6 below. Late payments of any invoices (except any portions thereof which are the subject of a good faith dispute in accordance with the terms of Section 4.6 below) will accrue interest on the unpaid sum as of the date of the invoice at the lesser of (i) the highest legal rate of interest permitted in the State of Illinois and (ii) one and one-half percent (1.5%) per month. CacheFly may apply any payments received by CacheFly to Customer’s accrued late payment charges prior to any of Customer’s outstanding invoices.
Unless otherwise specified in an Order, all payments by Customer under this Agreement must be made by Customer to CacheFly in United States of America dollars.
The Fees are exclusive of all international, federal, state and municipal taxes (including sales taxes and withholding taxes), levies, duties or similar charges, however designated, levied or imposed, that may be assessed by any jurisdiction, under current laws or regulations or as a result of any change in laws or regulations following the Effective Date (collectively, “Taxes”). Customer shall be responsible for (and shall pay or reimburse CacheFly for, as applicable) all such Taxes as may be assessed against CacheFly, during the term of this Agreement or subsequent to the effective date of expiration or termination hereof, which are levied or imposed by reason of the performance by CacheFly or Customer or exercise of any of its rights; excluding any Taxes based on the net income of CacheFly.
If Customer wishes to dispute any charges billed to Customer by CacheFly (a “Disputed Amount”), Customer must (i) pay the undisputed portion of the applicable invoice and (ii) submit a good faith claim regarding the Disputed Amount with such documentation as may reasonably be required to support the claim, within ninety (90) days of Customer’s receipt of the initial invoice sent by CacheFly regarding the Disputed Amount. If Customer does not submit a documented claim within such time period then, notwithstanding anything in this Agreement to the contrary, Customer waives all rights to dispute or otherwise make any claim of any kind with respect to such Disputed Amount.
The term of this Agreement commences on the Effective Date and continues until the last effective date of expiration or termination of all Orders hereunder, unless earlier terminated as provided herein.
Customer may terminate this Agreement, in whole or in part (including any individual Order and associated Service Description hereunder), for any or no reason, upon at least ninety (90) days prior written notice to CacheFly; provided that Customer pays the applicable Early Termination Charge defined in Section 7.2 below.
At any time during the term of this Agreement, either Party may terminate this Agreement, in whole or in part (including any individual Order and associated Service Description), immediately upon written notice to the other Party, if the other Party commits a breach of any of its material obligations under this Agreement and fails to remedy such material breach (i) within five (5) days immediately following written notice thereof, if such breach is Customer’s failure to pay any amounts due under this Agreement, or (ii) otherwise, within thirty (30) days immediately following written notice thereof. Notwithstanding anything in this Agreement to the contrary, any payment required to cure a Customer breach must be remitted to CacheFly by official bank check or wire transfer. For the avoidance of doubt, a breach of any individual Order and/or Service Description shall be deemed a breach of this entire Agreement.
At any time during the term of this Agreement, either Party may terminate this Agreement immediately upon written notice to the other Party if: (i) the other Party (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under applicable bankruptcy laws, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under applicable laws, which proceedings are not dismissed within thirty (30) days, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (ii) the other Party passes a resolution for its winding up or dissolution or a court of competent jurisdiction makes an order for such other Party’s winding up or dissolution.
In the event CacheFly discontinues the provision of any Services to all of CacheFly’s customers or if, in CacheFly’s reasonable discretion, such discontinuation is necessary or advisable to comply with any applicable law or regulation or a request of any governmental or law enforcement authority, CacheFly may terminate those Orders and associated Service Descriptions pertaining to such Services and, if reasonably feasible, shall provide Customer at least ten (10) days prior written notice of such discontinuation. In the event any Service is discontinued under this Section 6.4, CacheFly shall rebate Customer any prepaid funds for the time period associated with the discontinued Service.
Unless otherwise agreed by the Parties, (i) by no later than the effective date of expiration or termination of any Order, Customer shall cease using any and all Services provided under such Order; and (ii) by no later than the effective date of expiration or termination of this Agreement, Customer shall cease using any and all Services provided under this Agreement.
In the event (i) Customer terminates any Order under this Agreement other than pursuant to Section 6.2 or 6.3, or (ii) CacheFly terminates an Order in accordance with Section 6.2 hereunder, then, without prejudice to any other rights or remedies of CacheFly under this Agreement, and in addition to paying to CacheFly any other amounts due and owing under this Agreement, Customer shall pay to CacheFly an “Early Termination Charge” comprising all Recurring Charges due in respect of the then current Term of the Order. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by CacheFly as a result of an early termination, and is not a penalty.
The expiration or termination of this Agreement for any reason will not affect the accrued rights of the Parties or the right of either Party to sue for damages arising from a breach of this Agreement. Notwithstanding expiration or termination of this Agreement, (i) Customer shall remain liable to pay to CacheFly all Fees and other amounts due or accruing on or prior to the effective date of such expiration or termination, and (ii) the rights and obligations of the Parties set forth in this Agreement which by their terms survive the termination of this Agreement shall remain in full force and effect beyond the effective date of expiration or termination of this Agreement, including Sections 2.1.5, 2.2.4, 3.1, 3.3.2, 3.3.3, 3.4, 3.5, 3.6, 3.8, 4, 6.2, 7, and 9 through 16.
CacheFly represents and warrants to Customer that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations and exercise its rights under this Agreement, (iii) its execution and performance of its obligations and exercise of its rights hereunder will not violate any agreement or other obligation by which it is bound, (iv) it will comply with all applicable laws, rules and regulations in connection with the provision of the Services, and (v) this Agreement, when executed by the signatory for CacheFly identified below, is a legal, valid and binding obligation of CacheFly.
Customer represents and warrants to CacheFly that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations and exercise its rights under this Agreement, (iii) its execution and performance of its obligations and exercise of its rights hereunder will not violate any agreement or other obligation by which it is bound, (iv) it will comply with all applicable laws, rules and regulations in connection with the performance of its obligations and exercise of its rights hereunder, including any applicable export control laws and regulations, and (v) this Agreement, when executed by the Customer, is a legal, valid and binding obligation of Customer.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND CacheFly DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CacheFly SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES, OR THE USE THEREOF, WILL BE SECURE, FREE OF DEFECTS, ERRORS OR MALICIOUS CODE, OR UNINTERRUPTED.
Subject to Section 9.2, each Party hereto shall treat as confidential (i) the terms and conditions of this Agreement (excluding the existence of this Agreement), and (ii) all confidential or proprietary information the receiving Party may receive from the disclosing Party or be given access to by the disclosing Party (“Confidential Information”). Confidential Information shall specifically include all trade secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to the disclosing Party, including maps, network routes, methodologies, specifications, locations, business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers and customers, contractual arrangements, employee information, and proprietary technologies and processes, software programs, systems, source code, specifications, inventions, designs, developments, and databases, together with compliance reports, auditor’s reports, and related work papers and records. Notwithstanding the foregoing, Confidential Information will not include information (a) that the receiving Party can demonstrate was lawfully received from another source with the right to furnish such information, without restriction or subject to restrictions in which it has conformed; (b) that is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving Party; (c) which the receiving Party can demonstrate was, at the time of disclosure to it, rightfully known to it free of restriction; or (d) which is independently developed by a Party without the use of or referral to any other Party’s Confidential Information.
Except as otherwise expressly provided in this Agreement, the receiving Party shall not, and shall not permit any other Person to, (i) use Confidential Information for any purpose other than the performance of the receiving Party’s obligations or exercise of its rights under this Agreement, or (ii) divulge such Confidential Information, without the disclosing Party’s prior written consent, except to those employees and independent contractors who have a need to know such Confidential Information for purposes of carrying out the receiving Party’s obligations or exercising the receiving Party’s rights under this Agreement. The receiving Party shall be responsible for all acts or omissions of its employees and contractors in respect of access to or use of the Confidential Information. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated or requested by applicable laws or by an order of a court or any regulatory, governmental or law enforcement agency or other authority, each of competent jurisdiction, then, (a) if not so prohibited by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the receiving Party shall promptly notify the disclosing Party of such requirement, (b) if so requested by disclosing Party, the receiving Party shall use good faith efforts, in consultation with the disclosing Party, to secure confidential treatment of the Confidential Information to be so disclosed, and (c) the receiving Party shall furnish only that portion of the Confidential Information it is legally required to disclose.
The receiving Party shall promptly notify the disclosing Party of any actual or reasonably suspected unauthorized use or disclosure of any Confidential Information and shall fully cooperate with the disclosing Party to remedy and/or mitigate any losses or damages associated therewith.
Neither Party may release a public statement announcing this Agreement or any individual Order (“Press Release”) without the prior written consent of the other Party.
Each Party agrees that, during the term of this Agreement and for a period of twelve (12) months immediately following the effective date of expiration or termination hereof, it shall not, without the other Party’s prior written consent, knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor or consultant of the other Party; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant.
Each Party acknowledges and agrees that the violation of any of its obligations or any of the other Party’s rights as set forth in this Section 9 would cause irreparable harm to the other Party, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by the other Party of this Section 9, the non-breaching Party shall be entitled to seek injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as the non-breaching Party may have under this Agreement.
As between Customer and CacheFly, all rights, title and interest in and to all Services, all Confidential Information of CacheFly, and all technology, data, information and other materials utilized by or on behalf of CacheFly to provide any Services under this Agreement, together with all patents, copyrights, trade secrets and other intellectual property rights in or to the foregoing (collectively, “CacheFly Property”), shall be and remain vested in CacheFly (or its third party licensors or service providers). Customer shall not do or cause to be done any act contesting or in any way impairing any rights, title or interest in any CacheFly Property or in any manner represent that it possesses any ownership interest in any CacheFly Property. Customer shall notify CacheFly immediately in the event Customer becomes aware of (i) any unauthorized use of any CacheFly Property, (ii) the loss, theft or other compromise of any Access Method of Customer, and/or (iii) any information relating to any alleged or suspected infringement or other violation of any CacheFly Property. Notwithstanding the foregoing, CacheFly shall not have any obligation under this Agreement to investigate, prosecute or otherwise take any action of any violation of which it is notified by Customer, and Customer shall have no right to prosecute or otherwise take any action in respect of such violation.
IN NO EVENT SHALL CacheFly OR CUSTOMER BE LIABLE UNDER THIS AGREEMENT TO ANY PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA (INCLUDING CUSTOMER DATA) OR TECHNOLOGY, GOODWILL, CONTRACTS OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE, CONSTRUCTION, INSTALLATIONS, REPAIR, MAINTENANCE, OR OTHERWISE), WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, AND WHETHER OR NOT SUCH ANY SUCH PERSON HAS BEEN ADVISED OF OR REASONABLY COULD HAVE FORESEEN SUCH DAMAGES. FURTHER, EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, IN NO EVENT SHALL CacheFly BE LIABLE HEREUNDER FOR ANY SERVICES OF ANY THIRD PARTY PROVIDER THAT ARE PROCURED OR PROVIDED BY CacheFly HEREUNDER OR USED BY OR ON BEHALF OF CacheFly TO PROVIDE ANY SERVICES.
IN NO EVENT SHALL THE LIABILITY OF CacheFly UNDER THIS AGREEMENT EXCEED IN THE AGGREGATE ONE POINT FIVE TIMES (1.5X) THE TOTAL FEES PAYABLE BY CUSTOMER, WITH RESPECT TO THE SPECIFIC SERVICES GIVING RISE TO SUCH LIABILITY, DURING THE FIRST YEAR OF THE TERM SET FORTH IN APPLICABLE ORDER (THE “CAP”).
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO (i) ANY LIABILITY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, (ii) ANY LIABILITY OF EITHER PARTY ARISING FROM ITS BREACH OF SECTION 9, (iii) CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12.2, (iv) CacheFly’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 12.1.1, AND/OR (v) ANY LIABILITY THAT CANNOT BE EXCLUDED UNDER ANY APPLICABLE LAWS. CUSTOMER WAIVES ANY RIGHT TO SEEK INJUNCTIVE RELIEF FOR ANY CAUSE OR MATTER ARISING FROM THIS AGREEMENT, EXCEPT AS PROVIDED IN SECTION 9.6.
Customer may not, and hereby waives any right to, bring any claim against CacheFly arising out of or in connection with this Agreement more than one (1) year after the effective date of expiration or termination of the Order relating to the Services giving rise to such claim.
CacheFly agrees to indemnify, defend and hold Customer and its officers, directors, employees, agents and contractors (collectively, the “Customer Parties”) harmless from and against all losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses (collectively, “Losses”) incurred or suffered by such Customer Parties arising out of, or in connection with, any claim, demand, proceeding, investigation or cause of action initiated by a third party (each, a “Claim”) based upon or arising out of: (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, caused by CacheFly’s gross negligence or willful misconduct; and/or (ii) any allegation that any Services owned by CacheFly, or Customer’s use thereof in accordance with the terms of this Agreement (excluding any Services provided by any Third Party Provider), infringe or otherwise violate any patent, copyright, trade secret or other intellectual property right of any Person. Notwithstanding the foregoing, CacheFly shall have no obligations under (a) this Section 12.1.1, to the extent the Claim arises from or in connection with the willful misconduct or gross negligence of Customer or any other Customer Parties, or (b) to the extent such Claim is based upon any use by Customer of any Services in violation of any terms of this Agreement, any modification by Customer of any Services, or any combination of any Services, with any technology or other materials not provided by CacheFly. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 12.1 CONSTITUTE CUSTOMER’S SOLE RIGHTS AND REMEDIES FOR ANY CLAIMS OF INFRINGEMENT OR OTHER VIOLATIONS OF ANY PROPRIETARY RIGHTS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED HEREUNDER.
In the event CacheFly becomes aware or reasonably suspects that any portion of any Services may infringe or otherwise violate any proprietary rights of any Person, CacheFly may, to the extent reasonably feasible and in its sole discretion, (i) modify such item so that it is no longer in violation or potentially in violation of such rights, (ii) replace such portion of any Services with items CacheFly believes to be non-infringing (provided that, no modifications or replacements provided under clauses (i) or (ii) shall adversely affect in any material respect any functionality or feature of the relevant Services) and/or (iii) terminate the Orders or other parts of this Agreement pertaining to such Services, upon notice to Customer, and refund to Customer that portion of any Fees paid prior to the effective date of termination in respect of use of the affected Services following the effective date of such termination.
Customer agrees to indemnify, defend and hold CacheFly and its Third Party Providers and its officers, directors, employees, agents and contractors (collectively, “CacheFly Parties”), harmless from and against all Losses incurred or suffered by such CacheFly Parties arising out of, or in connection with, any third party Claim (including any Claim by customers of Customer) based upon or arising out of: (i) bodily injury or death or damage, loss or destruction of any real or personal property (including without limitation the property of CacheFly), caused by Customer’s gross negligence or willful misconduct; (ii) any breach by Customer of any provision of this Agreement; (iii) subject to Section 12.1.1(ii), any use by Customer (or any of Customer’s customers, including any End Users, or any Person using Customer’s Access Methods), of any Services, or any other act or omission relating thereto; (iv) any End User Agreement; and/or (v) any Customer Data. Notwithstanding the foregoing, Customer shall have no obligations under this Section 12.2 to the extent the Claim arises from or in connection with the willful misconduct or gross negligence of CacheFly or any other CacheFly Parties.
The indemnified Party shall use good faith efforts to notify the indemnifying Party of any Claim for which indemnification is sought hereunder as soon as possible after it becomes aware of the Claim and, in any event, within five (5) business days after it becomes aware of the Claim; provided that the failure to provide such notice within such timeframe shall not constitute a breach hereof or serve to release the indemnifying Party from its obligations under this Section unless such failure prejudices the ability of the indemnifying Party to defend the Claim. The indemnifying Party shall be entitled, in its discretion, to have sole conduct and control of all legal proceedings in connection with such Claim and/or the settlement or other compromise thereof. If the indemnifying Party elects to exercise such control, the indemnified Party shall give the indemnifying Party (and any Person acting on behalf of or authorized by the indemnifying Party) all reasonable assistance therewith, at the indemnifying Party’s reasonable expense. Notwithstanding the foregoing, (i) the indemnifying Party shall not, without the indemnified Party’s prior written consent, agree to any judgment or enter into any settlement or other compromise that adversely affects the interests of the indemnified Party, and (ii) the indemnified Party shall have the right, at its own expense, to participate in the defense of any Claim.
Neither Party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, excluding any failure to pay any amounts due hereunder, caused by or attributable to any cause beyond the reasonable control of the Party claiming relief (each, a “Force Majeure Event”), including but not limited to the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by CacheFly to construct and/or operate any of its facilities or networks.
In the event of any claim, dispute, controversy, or other matter in question between the Parties arising out of or relating to this Agreement or the breach hereof, excluding any third party claims subject to indemnification pursuant to Section 12, but including any disagreements as to indemnification rights hereunder (each, a “Dispute”), such Dispute shall be referred to senior officers of each Party who must, within fourteen (14) days following such referral, use good faith efforts to attempt to resolve the Dispute. If the Parties cannot resolve any Dispute in accordance with this Section 14.1 within fourteen (14) calendar days, the Parties may seek judicial resolution and remedy of the Dispute.
Customer may not seek judicial resolution and remedy of any Dispute until the Parties have complied with the procedures set forth in Sections 14.1.
Each Party shall continue performing its obligations under this Agreement while any Dispute is being resolved, unless otherwise agreed by the Parties or ordered by a court of competent jurisdiction, except to the extent such obligations are terminated pursuant to the terms of this Agreement.
Except as otherwise set forth in this Agreement, all notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with a nationally renowned (e.g., Federal Express, UPS) overnight delivery service for next day delivery, or (iii) five (5) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested. Notices to CacheFly shall be sent to ServerCentral, Inc., 111 W. Jackson Blvd., Suite 1600, Chicago, IL 60604-3589, or such other address for such purposes of which CacheFly notifies Customer. Notices to Customer for breach or termination of this Agreement shall be sent to such address for Customer set forth on [the initial Order by Customer], or such alternative address for such purposes of which Customer provides CacheFly written notice. In addition, CacheFly shall have the right to send Customer notices (other than notices for breach or termination) to Customer’s email address set forth on CacheFly’s customer contact list. Such email notification shall be deemed delivered on the day sent unless returned to sender.
This Agreement, together with all exhibits hereto, constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between the Parties with respect to the subject matter hereof.
CacheFly may modify, supplement and/or otherwise amend this Agreement from time to time in CacheFly’s discretion, upon written notice to Customer, and such Amendment shall be effective upon such notification. Customer’s continued use of any Services following such notice by CacheFly of amendment of this Agreement will be deemed to constitute Customer’s acceptance of such amendment. Except as expressly provided for herein, this Agreement may not be modified, supplemented or otherwise amended by Customer except pursuant to the written agreement of each Party.
Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld, except that either Party may assign this Agreement upon notice and without consent to (i) an Affiliate of such Party or (ii) a Person into which it is merged or consolidated or which purchases all of its equity interests or all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent will be void and will be considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party. For the avoidance of doubt, any such assignee must comply with the terms of Section 4.2. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
This Agreement is binding upon, and shall inure to the benefit of, the Parties and their respective administrators, legal representatives, successors, heirs and permitted assigns, as applicable. Except as set forth in Section 12, the Parties agree that no provision of this Agreement is intended, expressly or by implication, to purport to confer a benefit or right of action upon a third party (whether or not in existence, and whether or not named, as of the Effective Date).
Nothing in this Agreement shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between the Parties, and neither Party shall have the authority or power to bind the other Party, or to contract in the name of the other Party, in any manner or for any purpose.
Each provision of this Agreement shall be considered separable; and if, for any reason, any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, unlawful, or unenforceable, such determination shall not affect the enforceability of the remainder of this Agreement or the validity, lawfulness, or enforceability of such provision in any other jurisdiction. If any court of competent jurisdiction shall deem any provision of this Agreement too restrictive, the other provisions hereof shall stand, and the court shall modify the provisions at issue to the point of greatest restriction permissible by applicable laws.
The failure of a Party to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of each Party.
No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, except as expressly provided in this Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise.
If CacheFly retains counsel for collection or enforcement of Customer’s obligations hereunder or to represent CacheFly in any bankruptcy, reorganization or, receivership proceedings, then Customer shall promptly reimburse CacheFly for all reasonable attorneys’ fees, costs and expenses incurred in connection therewith.
References to sections and exhibits are to sections of, and exhibits to, this Agreement, unless otherwise indicated. Section headings are inserted for convenience of reference only and shall not affect the construction of this Agreement. The singular number shall include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars. References to any Person (including the Parties and any other entities referred to) shall be construed to mean such Person and its successors in interest and permitted assigns, as applicable.
In the event of any inconsistency between the terms of the main body of this Agreement and any Order or Service Description hereto, the terms of the main body of this Agreement will govern to the extent of the inconsistency.
The validity and effectiveness of this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Illinois, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws. Subject to Section 14, any legal action or proceeding with respect to this Agreement shall be brought exclusively in the Federal or state courts located in Chicago, Illinois, including the United States District Court for the Northern District of Illinois. Each Party waives, to the fullest extent permitted by applicable laws, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. Service of process shall be made in any manner allowed by applicable laws.
CacheFly provides a Content Delivery Network (“CDN”) which delivers web files physically closer (and thereby, significantly faster) to Customers’ end-users than traditional single-location web hosting, utilizing a geographically distributed network of servers located in high-availability data centers across the Internet (the “CacheFly Network”).
CacheFly offers three service models – either a CDN Subscription Plan, Pay-as-You-Go Plan, or custom plans. Each plan is comprised of two components – data transfer, and data storage. Data transfer is measured between the CacheFly Network and Customer’s end user browser/client/requestor. CacheFly does not charge fees for transfer of Customer data to or within the CacheFly Network. In cases where Customer utilizes its own storage in connection with the CacheFly service, there are no Fees for CacheFly to cache Customer’s files.
Fees for CDN Subscription Plans are charged on a monthly basis, billed on the anniversary date of the plan. Each CDN Subscription Plan will list an included amount of data transfer and content storage, each expressed in Gigabytes (as defined below). Usage in excess of any included amount will incur an overage charge as set forth in the CDN Subscription Plan which will be billed to customer on the following month’s invoice.
CacheFly Pay-As-You-Go Plans are charged as consumption occurs and settled on a monthly basis on the anniversary date of the plan. Charges for Pay-As-You-Go data transfer and storage are billed in Gigabyte increments, as measured by the CacheFly Network.
CacheFly Custom Plans are charged based on agreed per month pricing per data transfer and storage. Custom Plans are charged on a monthly basis, billed on the anniversary date of the plan. Excess usage that occurs will be billed on the following month’s invoice.
From time to time, CacheFly may offer a promotional account for new customers to evaluate the service prior to the purchase of a plan (each a “Trial Plan”). The services provided in any Trial Plan, if available, will be set forth on the CacheFly website during the registration of the Trial Plan. Each Trial Plan will have a limited duration and permitted storage and transfer amounts (such as 14 calendar days, with up to 10 Gigabytes of storage and 2,048 Gigabytes of transfer). Upon conclusion of the Trial Plan, the CacheFly Network will automatically suspend the service unless Customer selects a plan and payment method via the CacheFly website, or via a CacheFly Sales Representative.
The CacheFly Network will be available 100% of the time.
If CacheFly fails to meet its Service Level during any given service’s billing month, Customer’s account will be credited. Upon Customer’s request, CacheFly will issue a credit to Customer for failure to meet the CDN Uptime Service Level in an amount equal to one day’s worth of the Monthly Fee paid by Customer, multiplied by 10 minute period (or portion thereof rounded to the next hour) of the cumulative duration of such failure during a particular billing month.
Customer shall not receive any credits under these SLAs in connection with any failure or deficiency caused by or associated with:
If Customer is entitled to multiple credits under this Service Description, the aggregate Credits in respect of any one (1) calendar month issued under this Service Description shall not exceed the total Monthly Fees payable for the CDN for two (2) weeks during such calendar month. Except as set forth in this Service Description, CacheFly makes no claims regarding the availability or performance of the CDN. The remedy for failure of any individual CDN plan shall be limited to the remedies described herein, and shall not constitute a failure of any other CacheFly products or services. CacheFly’s suspension or modification of any plan in accordance with the terms of its Master Products and Services Agreement shall not be deemed to be a failure of CacheFly to meet adequate Service Levels under the Agreement. Any failure that is determined to be, in CacheFly’s reasonable discretion, attributable to conditions at any Customer or end user premises (including, but not limited to, network failures) shall not be deemed a failure to meet any of the Service Levels described herein.
Any IP addresses assigned to Customer by CacheFly remain the sole property of CacheFly, and may be used only in connection with and for the duration of the Services purchased. In the event Customer discontinues the use of the Services for any reason, or this Supplement terminates for any reason, Customer’s right to use the IP Addresses.
Any capitalized terms not otherwise defined herein shall have the definitions ascribed thereto in the main body of the Master Product and Service Agreement entered into by CacheFly and Customer or the Order(s) applicable to the CDN Service.
“Gigabyte” – A unit of measure equal to 1,073,741,824 bytes which can be expressed as a volume of data storage, or data transferred across a network. Gigabytes may be represented as “GB”.
“Monthly Fee” – Consists solely of the base monthly fee paid by Customer for the affected CacheFly service.
“Network Outage” – A period of time that the CacheFly Network was not available to delivery content to the Internet for 2 or more consecutive 2 minute periods.
“Terabyte” – A unit of measure equal to 1,024 Gigabytes (as defined above). Terabytes may be represented as “TB”.
Dated: July 14, 2015