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ServerOwl™ Service Agreement

Last modified: September 22, 2018

Welcome to ServerOwl™ - a product by Ekky™

Thanks for using our products and services ("Service"). This Service is provided by Ekky Software Pty Ltd ("Ekky", "We"); ABN 52 127 968 745.

By using our Services, you are agreeing to this Agreement. Please read it carefully.

ServerOwl™ Service Agreement

You must follow any policies made available to you within the Services.

This ServerOwl™ Service Agreement (the "Agreement") is made and entered into by and between Ekky and the entity or person agreeing to these terms ("Customer").

This Agreement is effective as of the date Customer clicks to accept the Agreement (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept.

Provision of the Services

  1. Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by Ekky as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
  2. Admin Section. Ekky will provide the Services to Customer. As part of receiving the Services, Customer will have access to the Admin Section, through which Customer may administer the Services.
  3. ServerOwl Accounts. Customer must have a ServerOwl Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify Ekky as promptly as possible. Ekky has no obligation to provide Customer multiple Tokens or Accounts.
  4. Modifications
    1. To the Services. Ekky may make commercially reasonable updates to the Services from time to time. If Ekky makes a material change to the Services, Ekky will inform Customer, provided that Customer has subscribed with Ekky to be informed about such change.
    2. To the Agreement. Ekky may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Ekky, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. Ekky will provide at least 90 days' advance notice for materially adverse changes to any Software Licence Agreements (SLA) by either: (i) sending an email to Customer's primary point of contact; (ii) posting a notice in the Admin Section; or (iii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, please stop using the Services. Ekky will post any modification to this Agreement to the Terms URL.

Payment Terms

  1. Free Quota. Certain Services are provided to Customer without charge up to the Fee Threshold, as applicable.
  2. Billing Periods. End billing period is calculated as 1 month equalling 30 days and 1 year equalling 365 days.
  3. Credit Limits. Unless otherwies agreed in writting, all accounts will be subject to billing once the outstanding amount reaches a total value of A$300.
  4. Online Billing. At the end of any applicable Fee Accrual Period, Ekky will issue an electronic bill to Customer for all charges accrued above the Fee Threshold based on (i) Customer's use of the Services during the previous Fee Accrual Period (including, if any, the relevant Fee for TSS set forth in the Fees definition below); (ii) any Reserved Units selected; (iii) any Committed Purchases selected; and/or (iv) any Package Purchases selected. For use above the Fee Threshold, Customer will be responsible for all Fees up to the amount set in the Account and will pay all Fees in the currency set forth in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, Ekky will charge (and Customer will pay) all Fees immediately at the end of the Fee Accrual Period. If Customer elects to pay by invoice (and Ekky agrees), all Fees are due as set forth in the invoice. Customer's obligation to pay all Fees is non-cancellable. Ekky's measurement of Customer's use of the Services is final. Ekky has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Ekky.
  5. Taxes
    1. The Customer is responsible for any Taxes, and the Customer will pay Ekky for the Services without any reduction for Taxes. If Ekky is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Ekky with a timely and valid tax exemption certificate authorized by the appropriate taxing authority.
    2. The Customer will provide, Ekky with applicable tax identification information that Ekky may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Ekky for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
  6. Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Ekky, Ekky will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Ekky will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Ekky and will only be in the form of credit for the Services. Nothing in this Agreement obligates Ekky to extend credit to any party.
  7. Delinquent Payments & Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Ekky in collecting such delinquent amounts. If Customer is late on payment for the Services, Ekky may suspend the Services or terminate the Agreement for breach pursuant to Termination for Breach Section.

Customer Obligations

  1. Compliance. Customer is solely responsible for all information provided in the course of using the service. Ekky reserves the right to review the information provide. Customer is responsible for ensuring all Customer End Users comply with Customer's obligations under the Service Specific Terms, and the restrictions in privacy and copyright Sections below.
  2. Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
  3. Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services; (b) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (c) create multiple Accounts, or User Profiles to simulate or otherwise access the Services in a manner intended to avoid incurring Fees; (d) or use the service to break any laws of any Country or State.
  4. Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer's use of that third party component.

Suspension and Removals

  1. Fair Use Requirement. Ekky provides the service in a manner where it expects that the Customer will use the Service fairly and without the expressed or implied intent to abuse the Service as provided. As such, Ekky reserves the right to limit the Customer's use of the Service to practical limits if Ekky believes that the Customer is using the Service beyond its fair usage. This includes limits on ServerOwl™ accounts and notifications.
  2. Suspension & Removals. If Customer becomes aware that any action make break this Agreement, Customer will immediately suspend the Service and/or remove the relevant Customer Data (as applicable). If Customer fails to suspend or remove as noted in the prior sentence, Ekky may specifically request that Customer do so. If Customer fails to comply with Ekky's request to do so within twenty-four hours, then Ekky may disable the Account or User's Profile (as may be applicable) until such violation is corrected.
  3. Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then Ekky may automatically suspend the offending Account or User Profile. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If Ekky suspends an Account or User Profile, for any reason, without prior notice to Customer, at Customer's request, Ekky will provide Customer the reason for the suspension as soon as is reasonably possible.

Intellectual Property Rights; Feedback; Benchmarking

  1. Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Account (if applicable), and Ekky owns all Intellectual Property Rights in the Services and Software.
  2. Customer Feedback. If Customer provides Ekky Feedback about the Services, then Ekky may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Ekky all right, title, and interest in that Feedback.
  3. Benchmarking. Customer may not publicly disclose directly or through a third party the results of any comparative or compatibility testing, benchmarking, or evaluation (each, a "Test") of the Services, unless the disclosure includes all information necessary for Ekky or a third party to replicate the Test. If Customer conducts, or directs a third party to conduct, a Test of the Services and publicly discloses the results directly or through a third party, then Ekky (or a Ekky-directed third party) may conduct Tests of any publicly available products or services provided by Customer and publicly disclose the results of any such Test.

Technical Support Services

  1. Technical Support. Subject to payment of applicable support Fees, Ekky will provide Support Service to Customer during the Term in accordance with the Support Service Guidelines. Certain Support Service levels include a minimum recurring Fee as described in the "Fees" definition below. If Customer downgrades its Support Service level during any calendar month, Ekky may continue to provide Support Service at the same level and Support Service Fees before the downgrade for the remainder of that month.

Deprecation of Services

  1. Discontinuance of Services. Subject to Deprecation Policy Section, Ekky may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
  2. Deprecation Policy. Ekky will announce if it intends to discontinue or make backwards incompatible changes to the Services specified at the URL in the next sentence. Ekky will use commercially reasonable efforts to continue to operate those Services versions and features identified without changes for at least one year after that announcement, unless (as Ekky determines in its reasonable good faith judgment):
    1. required by law or third party relationship (including if there is a change in applicable law or relationship), or
    2. doing so could create a security risk or substantial economic or material technical burden.
    The above policy is the "Deprecation Policy".

Confidential Information

  1. Obligations. The Customer will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The Customer will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
  2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the Customer may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users' use of the Services.

Term and Termination

  1. Agreement Term. The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
  2. Termination for Breach. Either party may terminate this Agreement for breach if:
    1. the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice;
    2. the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or
    3. the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
    In addition, Ekky may terminate any, all, or any portion of the Services or Accounts, if Customer meets any of the conditions in above Section.
  3. Termination for Inactivity. Ekky reserves the right to terminate the provision of the Service(s) or Account upon 30 days advance notice if, for a period of 60 days (i) Customer has not accessed the Admin Section or the Project has had no network activity; and (ii) such Project has not incurred any Fees for such Service(s).
  4. Termination at Convenience. Customer may stop using the Services at any time. The Customer may terminate this Agreement for its convenience at any time and if termination on prior written notice or otherwise, upon termination must cease use of the applicable Services. Ekky may terminate this Agreement for its convenience at any time without liability to the Customer or refund any of the unused pre-paid service.
  5. Effect of Termination. If the Agreement is terminated, then:
    1. the rights granted by one party to the other will immediately cease;
    2. all Fees owed by Customer to Ekky are immediately due upon receipt of the final electronic bill;
    3. Customer will delete the Software, any Application, Instance, Project, and any Customer Data; and
    4. upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

Publicity

  1. Customer is permitted to state publicly that it is a customer of the Services, consistent with the Trademark Guidelines. If Customer wants to display ServerOwl™ or Ekky™ Brand Features in connection with its use of the Services, Customer must obtain written permission from Ekky through the process specified in the Trademark Guidelines. Ekky may include Customer's name or Brand Features in a list of Ekky's customers, online or in promotional materials. Ekky may also verbally reference Customer as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party's right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.

Representations and Warranties

  1. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Ekky warrants that it will provide the Services in accordance with the applicable Agreements (if any).
  2. Disclaimer. Except as expressly provided for int this agreement, to the maximum extent permitted by applicable Law, Ekky and its suppliers do not make any other warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use and noninfringement. Ekky and its suppliers are not responsible or liable for the deletion of or failure to store any customer data or other communications maintained or transmitted through the use of the Serivice. The Customer is solely responsible for securing and backing up its Customer Data. Neither Ekky nor its suppliers, warrants that the operation of the software or the Service will be error free or uninterrupted. Neither the software not the service are designed, manufactured, or intended for high risk activities.
  3. As Is. We endeavour to fix issues as soon as they arrive and to minimise any impact on the Customer, but to have the belief that the Customer's use of this service will be without any potential chance of fault is unrealistic and unattainable and beyond this Agreement. The Customer is expected to undertake their own testing to satisfy that the Service meets their own particular requirements and to cease using the Service if it does not. We provide this Services "as is" and without any expressed or implied warranty.

Limitation of Liability

  1. Limitation on Indirect Liability. To the maximum extent permitted by applicable law, neither party, nor Ekky's suppliers, will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have that such damages where possible or should have known that such damages were possible and even if direct damages do not satisfy a remedy.
  2. Limitation on Amount of Liability. To the maximum extent permitted by applicable law, neither party, nor Ekky's suppliers, may be held liable under this Agreement for more that the amount paid by the customer to Ekky under this agreement during the twelve months prior to the event giving rise to liability.
  3. Exceptions to Limitations. These limitations of liability do not apply to violations of a party's Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.

Indemnification

  1. By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Ekky and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer's, or Customer End Users', use of the Services in violation of the Agreement.
  2. By Ekky. Ekky will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Ekky's technology used to provide the Services or (b) any Ekky Brand Feature infringes or misappropriates the third party's patent, copyright, trade secret, or trademark.
  3. Exclusions. In this Section, it will not apply to the extent the underlying Allegation arises from:
    1. the indemnified party's breach of this Agreement;
    2. modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
    3. combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
    4. use of non-current or unsupported versions of the Services or Brand Features.
  4. Conditions. The above Sections will apply only to the extent:
    1. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under the above Section (as applicable) will be reduced in proportion to the prejudice;
    2. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
  5. Remedies.
    1. If Ekky reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Ekky may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative;
    2. If Ekky does not believe the remedies in this Section are commercially reasonable, then Ekky may suspend or terminate Customer's use of the impacted Services.
  6. Sole Rights and Obligations. Without affecting either party's termination rights, this Section states the parties' only rights and obligations under this Agreement for any third party's Intellectual Property Rights Allegations and Third-Party Legal Proceedings.

Miscellaneous

  1. Notices. All notices must be in writing and addressed to the other party's legal department and primary point of contact. The email address for notices being sent to Ekky's Legal Department via contact page. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
  2. Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
  3. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
  4. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
  5. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
  6. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
  7. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
  8. Governing Law. The laws of the jurisdiction of New South Wales and the venue of the courts in New South Wales, Australia are applicable to this Agreement.
  9. Survival. The following Sections will survive expiration or termination of this Agreement: Intellectual Property; Confidential Information; Termination; Limitation of Liability; Indemnification; and Miscellaneous.
  10. Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. After the Effective Date, Ekky may provide an updated URL in place of any URL in this Agreement.
  11. Definitions.
    1. Account means Customer's ServerOwl™ account;
    2. Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party;
    3. Brand Features means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time;
    4. Customer Data means content provided to Ekky by Customer (or at its direction) via the Services under the Account;
    5. Emergency Security Issue means either: (a) Customer's or Customer End Users' use of the Services in violation of the Agreement, which could disrupt: (i) the Services; (ii) other customers' or their customer end users' use of the Services; or (iii) the Ekky's network or servers used to provide the Services; or (b) unauthorized third party access to the Services;
    6. Feedback means feedback or suggestions about the Services provided to Ekky by Customer;
    7. Fees means the applicable fees for each Service and any applicable Taxes;
    8. High Risk Activities means activities where the use or failure of the Services could lead to death, personal injury, or environmental damage;
    9. Indemnified Liabilities means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction;
    10. Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights;
    11. Legal Process means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process;
    12. Software means any downloadable tools, software development kits or other such proprietary computer software provided by Ekky in connection with the Services, which may be downloaded by Customer, and any updates Ekky may make to such Software from time to time;
    13. Taxes means any duties, customs fees, or taxes (other than Ekky's income tax) associated with the purchase of the Services, including any related penalties or interest;
    14. Third-Party Legal Proceeding means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

For information about how to contact Ekky, please visit our contact page.